/ 



THE RIGHT WAY "'^■'^ 



roK 



3lfst0ring t|e late %i\i\ %iiin 



TO 



THE FEDERAL UNION; 



OB, 



AN AEGUMENT INTENDED TO INDUCE THE PEOPLE 

AND PUBLIC MEN, IN MAKING ELCTIONS AND 

FILLING OFFICES, 

STA.TE -A.ND FEDERAL., 

\ TO BE GOVERNED BY 

THE CONSTITUTION OF THE UNITED STATES. 



" The subject who is truly loyal to the Chief Magistrate, will neither advise 
nor submit to arbitrary measures."— Junius. 



-< ' 



SEOOISTD EIDITTON" 



By Robert R. Collier, Esq. 



PETERSBUEG: 
PRINTED BY A. F. CRUTCHFIELD & CO., BAIJ^K ST., 

. 1865. 



60728 

KEADER. CONSIDER. 



Listen to a voice 'from East "Virginia, uttering, in time- 
honored principles, in studied truth and measured terms, the 
manner in which the States lately in. rebellion should be re- 
adjusted in their federal relations. The voice is from one 
who has spent much of his time and money, in every stage 
of a long life, in seeking, in labors of love, to advance the 
welfare of his native State. It may be you will listen with 
less credulity, because the author is not a stranger, and be 
under the influence of that sentiment ao-es agro recorded that 
a prophet is not without honor save in his own country. 
That deters him not from his duty. It shall not be his fault, 
if you will neglect the truths herein expressed, because they 
are homely truths. They are expressed with pains-taking 
concern for e:?^act verity. They look more to the durability 
of our representative system, than to the immediate advan- 
tage of any section, even our own, in the passing hour ; except 
that the passing hour can be best served by what is most likely 
to secure that durability. The wisdom of ages adorns most 
of the truths herein expressed. This expression of them, ia 
intended in support of liberty regulated hy law, which alone 
can assure social safety and happiness. Neglect of such truths 
will sting you, reader, in whatever section of our country 
your lot is cast, or your posterity, with a pungency sharper 
and deadlier than the serpent's poisonous tooth. It may be 
that the next generation will find that in this, the observance 
of principle was not enough valued. Reader, the writer 
would have you scan his language and rightly interpret it, 
here and throughout. Then, you va^j see and know it no- 
where speaks vanity, but fortitude whose weapon is honesty, 
and aims, the public good. Most in this life he has source of 
pride in, and indulges it, is that'he is not, nor ever was, gov- 
erned by that indifference to public affairs, which the selfish 
hide themselves in and always would have, and often get, 
others to regard as being moderation or modesty. 



INTEODUCTORY OF THE SECOND EDITION. 



Since the issuance of the first edition from the Press, the 
writer has searclied into the elementary authors, and into the 
adjudications of the courts, applicable to the doctrines ad- 
vanced respecting his right way, and he has embodied the 
results of his labors, in the matters with which this edition 
is enlarged. lie has found nothing in conflict with, and no 
little in support of, the way suggested as the best for restor- 
ing these States to the federal Union. Althouo-h so much 
prominence is given to that special topic, this edition so en- 
larged, is published, ?is the first was, less with a view to indi- 
cate the right way of acting in this yet fearful conjuncture, 
than to make an effort to reawaken the popular desire to have 
the public men respect the constitution of the United States, 
and in each State, the constitution thereof — that is, to kindle 
afresh, as in the earlier and purer periods of the Eepublic, the 
sentiment in the popular heart, that the first duty of last im- 
portance, of every man in office, is to admioister it, in the 
particular part of the general trust assigned to him, with 
fidelity to the restraints limiting his authority, just as they 
are, and not as he or any one may think they ought to be 
constituted. The written constitution declares the glory of our 
system. That ascertains and determines the extent to which 
the individuals trust their liberties to a majority. That also 
defines the extent to which the States, as such, trust their rights 
to majorities. If that fixed limit be transgressed, by so much 
the glory of the system will be under an eclipse. It is upon 
the republican principle the constitution is constructed, and 
in so far as the structure fails to conform to that theory of 
individual rights or States-rights, or there is a departure in 
administering it, by so much it fails of its professed purpose, 
and ceases to be worthy to be trusted for the protection of 
either class of rights, against invasions by majorities. 

That special topic of the right way in the passing condition 
of afiairs, is handled only with tho wish and belief that the 



IV 

work of restoring the States, shall be rightly done, to the end 
that it will be stable, when it is done. On the more general 
subject, the writer will remark that, in his judgment, the ob- 
stacle to the perpetuity and improvement of our system., is the 
multitude of popular elections. The offices so filled, will be 
sought after most eagerly, and by men less scrupulous than they 
should be of means of success. They ought to be lessened. 
The people who do not seek office, look to the observance of 
the laws, as their chief good. "When such elections are so 
multiplied, the remnant of the people, who are not seekers of 
office, and remain unseduced, is too small to persuade the public 
men in authority, much less are they able to compel them, to 
be under the influence, in their offices, of that respect for con- 
stitutional restraints, which is the highest public virtue in a 
Eepublic. 

As was remarked or predicted by the sagacious De Tocque- 
ville, it has already occurred, to wit, *' that when it shall be 
perceived that the weakness of the federal government, com- 
promises the existence of the Union, a reaction will take place 
with a view to increase its strength." That weakness was 
discovered in the inroads by "" State-sovereignty," of course. 
That reaction has now been wrought. The danger now is, of 
a precipitate increase of the federal strength, over-much, so 
as to over-master the rights reserved by the constitution to 
the States, which are of valtie, and the preservation of which 
is essential to save the system from sliding into a monarchy — 
which may God avert, and continue the triumph Washington 
won for republican authority over sceptred sway. Can it be 
that the constitution is to be neglected, until soon the fact will 
be, as too many lacking fortitude say is already the case, it 
shall have no influence in the popular elections, or the 
public councils ? The controlling power of moral obligation, 
on the men in office, and on the people who put them there, 
must be augmented in proportion as political liberty is en- 
larged, or else swift destruction awaits the noble structure our 
ancestors erected. It is not enough that the outward duties of 
religion be fulfilled with fervor. A sense of justice, in making 
as well as in administering the law, and a purpose staid on 



morality to obey them, must prevail to raise to reverend^ the 
inviolability of contracts. Above all else, not only must the 
truth be perceived, but it must be acted out, that there should 
be such a separation of Church and State, that it shall 
be the pride of the clergy to abstain from politics, in the 
sacred desk. Their own self-denial to exercise the right of 
suffrage in political elections^ would widen and deepen their 
religious influence. To win souls to immortality through 
regeneration, is their high calling, and it affords fully renown 
enough to fill the mortal career. As emphatically as it is 
thus suggested that the clergy should take on denial of the 
suffrage, let it be added that that is all that is meant. Any 
legislation so to restrain them, should be resisted strenuously. 
When it is said they should abstain from politics, especially 
in the sacred desk, all is meant the expression imports. It is 
not meant only that one branch of politics might be there dis- 
cussed, and every other branch excluded. All political sub- 
jects ought to be let alone there. The pulpit should be 
voiceless on the whole subject. What more than any other 
subject in the Northern pulpits, in recent years, and in the 
Southern also, has been discussed to the stirring and keeping 
strife aglow ? Surely, no other more than abolition, and none 
other is more clearly a political question belonging to the 
forum to discuss and the courts of civil law to decide. 

On the topic of the " restored " government of Virginia, 
which is treated of in an article herein, it is important that 
the third section of the fourth article of the constitution, be 
accurately understood. So much of it as applies reads thus : 
"no new State shall be formed or erected within the jurisdic- 
tion of any other State ; nor any State be formed by the junc- 
tion of two or more States, or parts of States, without the 
consent of the legislatures of the States concerned, as well as 
of the Congress." That is the punctuation in most, if not all, 
of the reprints of the constitution, in Virginia — it is exactly the 
same in the instrument as prefixed in the "Virginia Debates,''^ 
— but in Story^s commentaries, there is only a comma where 
the semicolon is above next before the word nor after the word 
state. If the comma is right, thgn both formations of a new 



VI 

State, the one lollhin anotlTer, and tlie other out of parts cf 
other States, are made subject to " the consent of the legisla- 
tures of the States concerned ; " but if the semi-colon is right, 
then the constitution does not recognize in the general gov- 
ernment the power to admit a new State formed within the 
jurisdiction of any other State; no, not even though the State 
by its legislature shall have given its consent ; but positively 
forbids the erection of a new State within another ; for, plain- 
ly, the semi-colon disjoins the members of the sentence, so 
that the qualification on the power subjecting its exercise, 
when two or more (or parts of) States are concerned, to the 
consent of their legislatures, is clearly disconnected with the 
erection of a new State within another State. So disconnected, 
the first member of the sentence or section, did not intend to 
subordinate the erection of one State within another, merely 
to the consent of its legislature, but to interdict it without 
condition. The earlier prints in the Virginia Debates, in 
1788, is more likely to be correct than that in Story, whose 
valuable work is so much later and more latitudinous. More- 
over, the semi-colon is used in Kicltey's " constitution," which 
is certified by James Buchanan, Secretary of State, to be " cor- 
rect in text, letter, and punctuation^ More significant than all 
these, the sense and context show that the erection of a 
State within another, was not intended to be subordinated 
merely to the consent of a legislature. It distinctly defines 
itself to refer to the plural consent of legislatures, and does 
not include or contemplate the consent of the legislature of a 
single State. Then and therefore says the objector, a State 
cannot be severed by the consent of the legislature, and two 
or more be made out of it. (But it does not follow that it 
might not less objectionably be done by a convention.) Just 
so, it is, as the objector says, that it caniiot be done by the 
legislature] and what harm is done that it is so? Infinitely 
less than may ensue, and likely will, if the sense and punctu- 
ation be set aside, or the constitution be amende J, so that the 
States, by ordinary legislation, may be subdivided, until they 
become as numerous as the counties, each entitled to two 
Senators. 



PREFATORY. 



Prompted by love of country, the ^.utlior presents to as 
many as may be supplied with a copy, tlie thoughts expressed 
in this little pamphlet. He not only does not intend to invit© 
but Y/ould earnestly discourage, any popular resistance to any 
plan for restoring the Union. His is suggested for the public 
authorities to consider, and, if deemed the best, to accept. The 
thoughts on which his plan would proceed, are not, as yet, 
current in the public mind: he aslfs that they be considered 
well, and, after that, he believes they will become as current 
as would coin from the mint. These, like most truths that 
are uncurrent, are not as yet current, only because the public 
mind is not familiar with them. The people are honest. 
"What a stimulus that fact ought to be to republican virtue in 
public men. 

The plan suggested in these pages, is simple and prompt- 
It is founded, for its manner, on the IV. Sec, I. Art., first 
clause. Constitution United States ; '-^ and for its principle^ 
to wit — " the republican form," — on Art. IV., Sec. IV., of the 
constitution. It is that the government of the Federal Union 
(and it is as much bound to give us the freedom, as we are to 
pay it the allegiance) shall authorize the State of Virginia to 

*That IV. Sec, I. Art., is as follows, and it is one of the most im- 
portant in the Constitution : " The times, places and manner of 
iiolding elections lx)r Senators and Representatives, shall be pre- 
scribed iu each State by the Legislature thereof; but the Congress 
may, at any time, by law, make or alter such regulations, except as 
to the places of choosing Senators." This authority reposes on the 
principle that every government ought to contain in itself the 
means of its own preservation. It is in the Congress, as the chief 
element of the national authority, anulHmatc power to be exercised 
to secure the representation from the State, incase of a failure or 
refusal to make proper regulations for governing the election^'. 



9 



^ 



renew her representation in the Congress of the United States. 
That would necessarily imply and impart authority to the 
State to elect a General Assembly, under and according to the 
provisions of the constitution of the State, as they were before 
the " rebellioni" All else to revive the suspended civil gov- 
ernment of the State, would follow and flow on as natural 
consequences ; and the purposes of the General Government, 
respecting the free people of color, would not, in the least, be 
interrupted thereby. Indeed, the Legislature elected under 
this plan, would be irresistibly constrained to alter the muni- 
cipal laws that were in force before, and to make them cor 
respond to the federal frustration of the late concluded at- 
tempt to " secede." 

If the author were slavish enough to offer any excuse for 
proposing his plan, which it seems the men in authority have 
not perceived, he might cite the conclusion of the lamented 
Lincoln's Amnesty Proclamation. He then said that any 
better plan would be accepted by him. But this author leans 
not on that reliance : in this age we live in, he cherishes the 
belief yet, that the toe of the peasant stands firmly nigh to 
and gently presses against the heel of the prince : he has no 
apology to make for proposing his plan to be substituted for 
the one sought to be put into practice, and which can even yet 
be regarded only as ^provisional. He believes his plan would 
■be permanent, because it is strictly in observance of law ; and 
in exhibiting it, he feels as free as the air he breathes. He 
knows it is no more designed to do harm, than the air was 
designed to destroy human life. If this plan be not accepted 
by the public authorities, it will be found that no other will 
work well, unless it be well to work the death of the repre- 
sentative system of political and civil freedom. Any other 
plan will have hitches in executing it, and huge hinges on 
which reminiscences will long grate harshly, in frequent up- 
starting, to irritate and annoy and embitter and new-create the 
fault. 

As in popular government it is and will perhaps always be 
the case, that frequent changes supervene, it may not be 
amiss to explain what the writer means by the terms "pro- 



visional " and " permanent." In the sense that tlie people 
can, at will, and often do, change the constitution of the State, 
any e^cisting constitution is only provisional, to endure until 
another, in a short time, shall be substituted. la that sense, 
every constitution is temporary, and none is permanent. 
Such, in fact, has been the habit of the States in this young 
federal republic. The federal constitution, which established 
an imperfect national government, has better withstood the 
popular passion for change. The constitution in many of the 
States, has been changed almosi as often as the young man has 
had his tailor take his measure for his garments. In the 
light of such facts, the terms are used only to distinguish the 
one that is irregularly introduced into force and elFect, and is 
avowedly to be superseded soon, from the other that is regu- 
larly established, and is professedly to endure, at least for the 
length of our generation. 

This plan, in brief, is, that the Congress shall authorize the 
States to elect representatives to the Congress, and fix the times 
for the elections. At the same time, the people of each State, 
qualified to vote, will elect a legislature, which is. necessary 
to elect the State's Senators to the Congress. The State, 
being so recognized to be in the practical relation to the 
Union, will be at liberty, and will see that it is an attendant 
duty, to elect the governor and other executive and the judi- 
cial officers, and also to fill the ministerial offices belonging 
to each department. If any act more direct is requisite, than 
the implication from the authority to elect representatives to 
the Congress, to authorize the State to proceed with the election 
of a Legislature and the other officers in the home adminis- 
tration, the recourse is accessible in the facts that the State is 
now under military rule, and the President of the United 
States, as commander-in-chief of the army, could order when 
the State elections for the home administrations shall be made. 
This election might be when the representatives to the Congress 
are elected. After the State is thus put in motion, in the pano- 
ply of the civil authority, a convention uf delegates could be 
called to alter the constitution, if necessary. 

Since the above "syas written, the proceedings of the people 



of Albemarle county have come under tliis author's inspec- 
tion (thiS; June 10th.) Those proceedings are in accord with 
the judgment that prompted this pamphlet. They protest 
against the propriety of spreading the Alexandria constitu- 
tion over this State, and, at the same time, counsel submission 
to it, as a provisional authority. They declare that — " Enti- 
tled to a republican form of government by the provisions of 
the Federal Constitution, to which they are now remitted, 
they cannot, without a dereliction of duty, shrink from as- 
serting their right to the same, nor leave their silence to be 
interpreted into acquiescence, Avhen measures are impending 
that contravene the fundamental principle of such govern- 
ment." 

Now, if "the advantage of gaining time," in respect of any 
one plan in preference to another, is to overrule the great 
■principle of the consent of the governed, and other valued 
elements of our representative system, why not at once inau- 
^uarate a dictatorship ? This would be the shortest way of 
gaining time. But it is not surprising, whilst the Albemarle 
plan was on the right principle, that it has failed to gain ac- 
ceptance. It proposes a needless convention^ and, besides, 
agrees to the North Carolina plan, which is less consistent 
with our system, than is the Pierpoint plan for Virginia. 
Notwithstanding those objections to the Albemarle project, it 
yet exhibits the first clear streak of dawn, the public had 
before seen, that has presaged the open broad day ; and yet 
those proceedings, in Albemarle county, propose no plan to 
remove, the first difficulty in the situation, which this pam- 
phlet does. Those proceedings reprobate the plan of using 
the Alexandria constitution, and it is not inappropriate that 
this pamphlet, which has for its sole purpose the suggestion 
of a plan to reach the roots of the evil, shall be the vehicle 
of reprobation, though in brief, of some incipient steps that 
have been vehemently intimated. These are the holding of 
t^tate and National conventions, to amend the constitutions, 
AVhy hold either ? It is said, to adapt them to the abolition 
of slavery. No convention is needed for that. The owner- 
ship of slavery is already extinguished by force of arms. 



Already an emancipation amendment of the Fedefal Consti- 
tution is pending, and has been adopted by. nearly enough 
States to ratify it. Already in these States, South, where 
that amendment has not yet been acted on, slavery has been 
killed by physical force, and will not be sought to be revived ; 
or if so, without any likelihood of success in Virginia. Then, 
why a convention for that purpose ? A convention would do 
mischief on other subjects, and is not necessary on this. The 
Federal constitution is the wisest emanation of statesmanship 
the world has ever seen — it embraces a cure for every ^disease 
the body politic is heir to — a remedy for any emergency. Con- 
sult it. It is the genuine scripture of the true political science. 
Cherish it, as it is. No change is necessary for adapting it, 
or that of this State, to the abolishment of negro-slavery. As 
well might the sturdy oak be cut down, or the ancestral tree, 
on the old homestead, that has yielded its fruit or spread its 
shade for generations, be dug up or hacked, because it has a 
rotten limb on its venerable trunk. Lop off the dead limb — 
that is quite enough. Slavery is already lopped off with a 
sharp axe and a strong arm. Let the old trunk stand with the 
other fruitful limbs, in beautiful, genial vigor, just as they 
are. Many who would advocate a convention, will think 
that only what they desire shall, will, be altered. They are 
in danger of meddling with strings, the existence of which 
they do not suspect. They may see the talisman removed, on 
which the fabric of freedom depends. 

I^J^T'These articles were written at the several dates they 
bear. Since they were written, much has been done towards 
effecting the restoration of the States : but nothing is likely 
to be or can be done, consistently with the federative system 
of our complex governments, without applying to the work 
of restoration, the principal features of the plan herein sug- 
gested. Nothing that has been done, in the least prevents 
the application of this plan ; especially in the light of the 
suggestion that these States being now under military rule, 
though, at the same time, having provisional civil govern- 
ment, the President of the United States, as commander-in- 
.chief, can order elections to be held for members of Congress, 



6 

implying autliority to elect the State Legislatnre, &;c., &c. 
The Congress of the United States would only have to admit 
the elected to seats, and no extra session of tlie Congress 
would be necessary, and the delay of the regular session 
avoided. Save to admit — that is, to exercise the authority to 
admit or not ; for, Congress is the judge of the elections, returns 
and qualifications of its own members, each house for itself. 
Neither is that all, nor the most, much as it is, just now. The 
work in hand is how, orderly, to get States back into their 
practical relations. Of thatf Congress is the judge. And it 
ought to be weighed well, and it is of great weight, that the 
Congress must act at first, or should act at last, in the matter 
of restoring these States. Unavoidably, the Congress must 
in advance give the authority to renew the State's represen- 
tation in the Congress, or else hold in reserve the power, 
(when the persons elected under whatever other authority 
they may be sent up, shall apply for the seats,) to pass on 
the competency of such other authority to have ordered the 
elections and given the credentials. The Congress may pos- 
sibly neglect that power of theirs. On that occasion of ad- 
mitting the elect to the seats, tlie whole question of orderly 
restoration of each State, will bo open. It cannot be consti- 
tutionally foreclosed. Whilst it is true, as the Boston Post 
justly declares, that " the present relations of the national 
government to these States, ought not to be prolonged for the 
purpose of compelling them to adopt constitutions or laws 
repugnant to the ideas and sentimi?nts of the people ; " yet, 
it is the right and the duty of the Congress to see to it that 
the process of restoration be conducted with method and by 
constitutional means. Must the Congress, the grand inquest 
of the nation, be silent in restoring the States ? Or, is it that 
they may have voice, but no vote, in the skill, and labor of 
the work ? And why should not the Congress have its ap- 
propriate work to do ? 

The writer has not failed to perceive, or to appreciate, the 
disinclination in the popular mind and the newspaper press, in 
the South, to discuss the subject of the proper plan for re- 
(Storing the States to the Union. That disinclination is from 



a double spring. It is the general opinion that the federal 
authorities are intolerant of free debate. This, the writer 
believes, is a misconception. That is one, but not the main, 
spring of that disinclination to discuss the subject. The 
other and the main spring is, that the public feeling in these 
States, South, is very much and unduly depressed — so much 
so as to be almost indifferent to the mode of restoring the 
States — indeed, quite in despair of ever again enjoying the 
rights of States in the Union. " Give us civil government," 
is the popular clamor, without considering whether t'he way 
in which it is attempted at the start, can be continued to a 
completion of the restoration. That gloom is owing to the 
fact, chiefly, that the supposed right of secession is squelched. 
That used to be esteemed, by many, to be the totality of 
States-Rights. No wonder they who so esteemed it, are des- 
pondent now it is strangled by the blood of its discomfit 
ture. That was their mistake, and a grevious mistake it was. 
It was the immediate cause of all our present and pressing 
woes. . If they who indulged that mistake, could be disabused 
of it, in their minds and hearts, their hope would be healthy 
and their expectation vigorous. Indeed, secession was not 
the sum total or the substance of States-Rights. If it were 
ever a right at all, it was a right to the damage of its posses- 
sors. It only excited a delusive expectation, . so perfectly 
imperfect a right it was. It excited the expectation of con- 
tinuing peace, in the event of its exercise. That expectation 
has been signally and explosively disappointed in the recent 
and first attempt to put it into practice. On no future occa* 
sion, would it be any more likely to be peaceful, or to prove 
to be an attractive shibboleth. Then, why was it claimed, or 
should it ever be again, as a right ? If not peaceful, it is only 
cumulative and superfluous. If not peaceful, it is only an- 
other name for the rirjlit of revolution. This blushing rose 
does not smell as sweet by that other name. There is much 
in a name. A blind man would put in the cup cow-dung, 
called bugar, to sweeten his coffee. By the name of '' seces- 
sionr the right to resist usurpation — to throw off old forms, 
and to institute new ones with fresh or firmer guards for the 



people's future security of happiness — is divested of all the 
glorious memories that cluster about tlie old and well-known 
name of tbe right of revolution. When the right is invoked 
by the old familiar name of revolution, the invocation means 
war ; and preparation is made for war. When it is invoked 
by the new name, it means peace in the imagination of its 
assertors; and when war swiftly ensues, they are all unpre- 
pared for it. Amidst the vicissitudes of the fortune of war, 
*' secession " could set up no banner for the union of all classes 
of the people. Aright then it is (if it exist in theory at all) 
to the disadvantage of them that asserted it. In practice it 
is ensnaring, though in theory it was charming. The theory 
is now exploded and expelled : at least, its advocates whom 
mo argument could reach, now dance to the music of the 
CTnion, after a long serenade of the trumpet's clangor and the 
-cannon's roar. Yet, nevertheless, the right of revolution 
remains, and all the valuable rights of the States, remain. 
The right to regulate suffrage — the right to representation in 
the Congress — a free, but not libellous press — a fair, but not 
slanderous speech — and every other right of any value, the 
Rist of which is long — all remain. Nor is there any room for 
the despondent belief that the rights subsisting and of value, 
though suspended by the State's delinquency, are to be taken 
.away. On the contrary, whilst the " seceding " States might 
from the first have been treated as States that had ceased by 
their own acts to have any rights in the Union, and ought to 
have been declared out of it, and then, hence, might, and pro- 
bably would, now be dealt with as conquered provinces, the 
federal authorities, not altogether free from moral restraint, or 
■even legal checks, disavow such to be the intended treatment, 
and proclaim the purpose and solicitude to restore them to 
the Union. Nor should any timidity exist in the minds of the 
private citizens, or on the part of the newspaper press, to 
discuss freely, if fairly and honestly, the application and en- 
joyment of the rights that are potential. The federal authori- 
ties have given no sufficient evidence of a design to suppress 
what ought to be published or spoken. It is not evidence to 
that effect, that as much latitude is not allowed under military 



rule, as might, witli impunity or even applause, be indulged 
in the milder and more equable reign of the civil law. Nor 
is it such evidence displayed in the fact that newspapers have 
been suppressed, the conductors of which, under misconcep- 
tion, and whilst the civil law was in abeyance, indulged abu- 
sive tempers. The liberty of the press cannot be justly 
claimed under military rule over a conquered province or a 
subjected State, to have the same extent, if indeed it can be 
claimed to be capable of existing at all, as under the civil 
law. In the one case, whatever liberty the press may have, 
is at the pleasure of the military commander ; Virhilst, in the 
other case, the liberty of the press consists in this, that neith- 
er the courts of justice, nor any other judge whatever, can 
lawfully proceed to suppress or check it, except only by the 
trial by jury. ■ » 

The writer's purpose which he here distinctly declares, as 
is indicated, perhaps, sufficiently already, is to pursue to ever- 
lasting death that evil principle, called State-secession, which 
has so long and exceedingly infected the public mind and 
infested the public counsels. It has been already slain by 
the sword ; that was its physical death. By the argument 
stated above, the writer seeks to subject it to the second 
death, by the most destructive views he has conceived to sub- 
ject its spirit to. He will now speak as gently as he can, of 
those who quickened its mortal career to so much success, 
before it reached its physical death by the sword. He has 
but one tear to shed, and then his eyes sparkle with joy ; and 
that tear is shed at the grave of the Confederate soldiers 
who were more numerous far and not less heroic than the 
seventy thousand Komans who were " killed on the spot," at 
Cann^, by Hannibal's Carthaginians.* Of the " Confeder- 
ates " who are so lamented as to elicit that tear, not many in 
the proportion were of the original secessionists, of whom the 
writer will proceed to speak a little space, and by way of 
taking a glimpse at the interior view of the great rebellion. 

*I noue the less Lament the slaughter of the Union soldiers, ex- 
cept the foreign mercenaries who, not impelled by love of liberty or 
pride of nativity, fought for land and richly gained a grave. 



10 

It often happens tliat errors of opinioa of much irnportauco 
and extensive influence prevail, simply because no one will 
take the trouble to contradict them, at the outset, or to con- 
front their march, with steady firmness. It is now being said 
that secession has been put down by the war. It is only true 
that it has ceased to be an illusi:)n. The fact is that secession 
never was uppermost, to be put down in the popular judg- 
ment. — On the contrary, a vast majority in the South have 
always denied the doctrine. John C. Calhoun never espoused, 
though John Q. Adams did assert it. It is true of the whole 
country, as of the qualified voters of this city, that only a few 
espoused that disorganizing and incompatible doctrine, In 
Petersburg, out of a voting population of eighteen hundred, 
just before the war, less than two hundred and fifty were in 
support of secession as a State-right. Yet nearly all that 
voting population, three-fourths of them being under the age 
of forty-five, were in the war, as soldiers or other " Confeder- 
ate *' servitors. And now, because they were in that service, 
they are claimed to have been secessionists, and many are 
discredited who are now found asserting that they were not in 
favor of the war, but friends of the Union. They were in 
the war, because they (and a proportional number of the whole 
South) suffered themselves to be wheedled into it, by that 
anarchical, ai>d place-hunting, and ever active party of seces- 
sionists whose conduct always evinced a determination to rule 
or ruin. Though eager for the war and addicted to efforts 
of laborious zeal to bring it about, making the while asseve- 
rations that no war would be superinduced, they have the 
reputation of not having done their part of the fighting, but 
being best fed out of the public crib, during the terrible con- 
vulsion of this youthful gigantic country driven by their 
counsels to the dreadful verge of utter ruin. These men have 
been the swiftest to apply for pardons. And it can now be 
seen by the careful observer, that tlieyi who before the war, 
were advocates of secession as a theory, are still seeking to 
make the impression that the war was waged to establish that 
right, in practice ; whereas it is the fact that seven-eighths of 
the people were deceived into the support of the war, on other 



11 

grounds of inducement to the acts of State secession, and 
nearly all of them with the view, swaying them, to make 
more sure the ownership of slaves, that was secure already. 
That it was secure in the States before the war, had been de- 
monstrated by votes in the House of Eepresentatives on three 
memorable occasions, to wit, in 1796, in 1833, and in 1859, 
(I believe were the years), when, at each time, a resolution 
was in that House adopted, almost unanimously, to the effect 
that the general government had no power to interfere with 
slavery in the States. How much less secure it was made by 
the war, the end of the war has told. How much the false 
doctrine prevalent in the South, that the people are sovereign 
in making and amending constitutions, to the extent of de- 
stroying an existing property, emboldened the North, and 
even excused them, in urging them on to slay negro-slavery 
by the sword, under cover of a design " to save the life of the 
nation " against the avowed attempt of the secessionists to 
dismember the Union, the world will probably never under- 
stand. It is under the influence of the fact that the heart of 
the people was not in support of secession which that party, 
small in numbers, but large in activity and deceptive powers 
sought to establish, that the people of the South have so 
readily and cheerfully acquiesced in the result of the war to 
the utter overthrow of that disorganizing doctrine which, 
whilst it has been so killed oft' by the war that it can never 
again be wielded as an element of deception, is yef cherished 
as a sound doctrine in theory by many of those who used it 
with such sad consequences to the South, and who would be 
willing to strive again to set it on its crippled legs, if they 
were strong enough to make the attempt. (Let it not be in- 
ferred from this vein of thought, drawn from a storehouse of 
facts, that anything here said carries the intimation that the 
late owners are not reconciled to the emancipation of their 
slaves. Such inference would be wrong, as such intimation, 
if intended, would violently assault the truth.) It is from 
the lingering attachment of the original secessionists to the 
exploded theory, that the false accusation springs to vex the 
patience of honest men who are right-thinking politicians, to 
3 



12 

the effect that men who hare all the time of the war beer 
friends of the federal Union, were, during the war, (if the} 
remained in the South,) either false to the South, or are no^ 
false to the North, There is not a word of truth in the unju? 
imputation. It is false in every sentiment and syllable, I 
is perfectly consistent with the nature of the human hear 
and the structure of human society, that, vfith profoundest 
honesty, a man may have been a friend of the Union, and 
yet have been willing to spend and be spent in support of the 
war on the side of tlie South. To b<3 brief, I will simply 
illustrate the proposition thus : I see my father in a quarrel 
— think him in the wrong — tell him so — even tell others that 
such is my deliberate belief — but he will insist, and after 
ample time for reflection, he gets into a fight — the odds are 
against him — I go to his help and take a hand in the fray. 
The principal man in the quarrel and fight was, before either, 
my friend; and I believed, during both the quarrel and the 
fight, that he was in the right. After the fight is over and 
my father is whipt, I tell his antagonist I thought all the time 
he was right and my father was wrong — but he was my father, 
and I took his side. Was I either false to my father, then, 
or to my friend, now ? No, neither. In the late rebellion, 
the South was my father — the Union, my friend. I took part 
with the South — the South is whipt — and I am, as I was, the 
friend of the Union. It cannot be justly said that I was false 
then to the South, or false novr to the Union. According to 
natural instincts, and in the depths, as well as on the surface, 
of the political philosophy of our system, I am and have been 
true to both, and by other conduct would have been false to 
the South, then, or now false to the Union. 

The men who before the war, opposed it, who contended 
that there was no suf&cient cause for it — who did least in 
prosecuting it — were in very truth the men, when calmly 
viewed below the fretful surface, who did most for the South. 
For one, though I did a little to aid in the war, and yet never 
for an hour believed the South could be as well off out of the 
Union, as in it, I will never admit that I wouLS not have done 
more for the South, if I had refused to gi-v^ any aid of any 



13 

sort in support of the war on the side of tlie South. They 
who did nothing in that way, have done more for the South, 
than they who in that way of bad activity, did most. That 
is just as clear as it is in any other wrong, that they who 
did most to execute it, are they who are most to be blamed. 
In my father's fight wherein he was in the wrong, in case my 
aid under the impulse of natural affection, uncurbed by rea- 
son, had given him success, how deep should be my sorrow, 
and loud my lamentatian, that the evil effects of his victory 
over my friend who was in the right, had brought a neigh- 
borhood into trouble, or a nation into calamity, which it 
might require ten years or a century to correct. Then, let 
not him who did most to carry on the war or was foremost to 
bring it on, take to himself, or be allowed by any to have the 
praise over him who would, if he could, have averted the 
bold onset of an attempt that has run its- career to the reverse 
result. The end of the attempt is full enough of evils which 
its permanent success would have augmented. Success with 
a view to reunion, is the only success that would have been 
better than defeat to the South. The original secessionists 
should stand aside, in shame, and the friends of the Union, in 
regret, who did most in the war, and let them who did the 

# 

least for the success of the war against the Union, and so did 
most for the South, proceed now to repair the ruins they were 
unable to prevent. 

It is not improbable that these men who vrere original 
secessionists — men bolder than brave, and more artful than 
wise — will strive to have the " Confederate " war debt paid. 
If they succeed, they will receive much of the payment, and 
by some shift contribute but a little. Nor is it unlikely that 
with the boast that they were sincere in their devotion to 
their principle — with which boast every field of election will 
be vocal — they will succeed in deceiving the people to put 
them in office again, in order to soothe their wounded pride 
and sore humility under the discomfiture their principle has 
encountered. A bad principle should elicit no sympathy, in 
its defeat, for its advocates. The people should be wise and 
just to tell them: "You deceived us once; that was your 



14 

fault : if you deoeive us again, it will be our fault." Besides, 
it would not be bonest and just in the people, by putting 
tbem in the public service again, to rob them of the crown of 
political martyrdom, which they declared before the war, if 
it came and they failed in it, would be glory enough for them 
— it was so sweet to sacrifice one's self for one's country, come 
death or defeat in the struggle. As they were not killed, let 
them living wear the martyr's crown, in private walks. 

It becomes the writer, in a sense of justice to others and 
himself, to state that, in his observations on " the Wheeling 
and Alexandria constitutions," which he reprobates in the 
.claim set up for them that they cover and convey a rightful 
authority in the so-called " restored " government of Virginia, 
he does not intend to impute to any who have taken the in- 
consistent oath to support it a?zc?the constitution of the United 
States, an act of intentional perjury. It is an oath in the 
forms of law prescribed, and persons authorized to administer 
oaths, have administered it. If possible it ought to be taken 
by all, and certainly every one who has taken it ought to 
observe it, in its purposes and spirit. No one has any right to 
menial reservation in taking a legal oath : and without legality 
no ceremony is an oath : nor can any man not legally 
charged with the service, administer a legal ceremony. No 
one who has not authority to administer an oath, can impose 
the obligation of an oath, by any formality wherein the party 
submitting to it, under constraint or by consent, is not re- 
quired by the laws to be subject to a prescribed oath. 

The recent occasional forms of oath imply that the party 
sworn has the right of mental reservation in taking a legal 
oath. The implication is, in this, that some forms recite that 
jihe oath is taken without mental reservation, as though the 
party would have that right, if the denial of it were not in- 
serted. The practical effect of the occasional recital of the 
denial of the right, is that the party sworn, observing the ab- 
sence of the denial in the present instance, assumes that it is 
not intended in this case, as it is required in some others. It 
is thus made evident that the better practice would be not to 
jnsert the denial in any case, an4 so to leave the ceremony to 



15 

the simple effect, unassisted, and legally cutting off the right 
to mental reservation, in all cases, without concession, or ex- 
ception, or cavil of any sort. 

In the matter of o^iths, no less than in other matters, no 
person who is not appointed by the law, can administer the 
law. It would be honorable to all societies which are un- 
regulated by laws enacted by the public legislature, if they 
would substitute the pledge of honor in the stead of the 
mockery they indulge, if indeed any of them do pretend to 
administer oaths, to bind their members or of&cers. Morality 
is more honored, and honor is better served, by the neglect, 
than by the practice, of such serious mimickry. Indeed, the 
more solemn the occasion, the more reprehensible the trifling 
with it. 

Three things are necessary to constitute an oath : (1) one 
party to swear (2) another, on (3) the occasion, all three ap- 
pointed by the laws. In all Christian countries, and with 
very much minuteness in Virginia, the laws determine when, 
and hy, and to whom, prescribed oaths shall be administered, 

In the light of these allegations, it is true that one who has 
gone through the mere lorms of taking an oath, when the 
transaction was not required or recognized by law, has the 
right of mental reservation, so as that afterwards, in case he 
fails to comply with the formality he passed through, how- 
ever, and yet to much less extent, he may be censurable for 
trifling with a sacred ceremony, he cannot justly be charged 
with legal or (so absurdly to speak) moral perjury. Observe 
the two points : (1) The pal-ty is culpable, but not guilty of 
any crime ; and (2) he had right to mental reservation, be- 
cause the party he was dealing with, on an occasion not known 
to the laws, had neither legal authority nor adequate moral 
power to impose the obligation of an oath. The party had 
the same right to mental reservation, he would have had to 
recant a rash promise made on the same occasion in any 'jLher 
form. As manslaughter is not murder, nor so criminal, 
though it is culpable; so, trifling with oath-taking, is not per- 
jury, nor so culpable, though it is' sinful, 

"Whilst all that is true of the oath specially adverted to, 



16 

the writer is not able to iiuderstand how be can escape perju- 
ry, in fact, though, not by intent, who has taken it, if the 
party he dealt with was authorized to administer it. The 
writer is not disposed to blame any one in particular who has 
taken it, except to this extent, he does blame all such : He be- 
lieves it would have been wise for all the people of the State 
to have declined taking it, for the reason that its two distinct 
obligations are so contradictory, the one of the other, that 
both cannot be complied with. 

Though this preface is already unusually fall in reference 
to the matters in the text, still the writer judges it not un- 
juitable to extend it somewhat in one distinct direction, and 
to enlarge a little in another direction. ' This purpose, first, is 
to say why the most difficult of all the problems- involved in 
the work of restoring the States of the Union, is not discussed. 
What is to be done with the colored people lately slaves, is 
that problem. Adventurous as any may think the writer to 
be, and unable as he feels himself to make a smooth and firm 
path the labyrinth he has attempted in much feebleness, 
though with some confidence, to thread, he declines to solve 
that problem of the future of the negro. He ventures to say 
it is too vast for any one man to master, or any one genera- 
tion of men to adjust. He will only say, as Jeremy Bentham 
expresses it, who is sometimes sage, at others, silly, that we 
cannot reason with a fanatic armed with natural right, which 
every one understands just as he likes ; applies as it may suit 
him ; of which he can yield no part, retrench no part ; which 
is inflexible, at the same time it is unintelligible ; which is 
consecrated in his eyes, as a dogma, and from which no one, 
he thinks, can depart, without crime. Instead of investiga- 
ting the principles of legislation by their apparent or proba- 
ble effects, and accordingly determining them to be good or 
bad, he considers and adopts or rejects them, with single re- 
ference to his standard of "natural right" — that is to say, he 
substitutes for the reason of experience,' the chimeras of im- 
agination. 

The subject of State disqualification to hold Federal of&ce, 
which is proposed to be enlarged on, in ending this preface, 



17 

involves a point that has long been in dispute and often under 
discussion, to settle which a good opportunity would be af- 
forded in enforcing this way of restoring the late rebel States. 
The point is, whether, by the constitution of a State, any dis- 
qualification can be superadded, so that a man, though twenty- 
five years of age, and an inhabitant of that State in which he 
was elected, at the time of the election — he having been seven 
years a citizen of the U. S., and elected by electors qualified 
to vote in the State for a delegate to the most numerous 
branch of its legislature, which are all the qualifications the 
constitution of the U. S. requires specifically, shall concur in 
him to entitle him to the seat in the House of Eepresentatives, 
shall, notwithstanding the concurrence of those requisites, be 
ineligible by reason of a disqualification prescribed by the 
constitution of his State. The point has been supposed by 
many to be presented, when it was not in point of fact. In 
McCreery^s case, in the House of Eepresentatives, in 1807, it 
was, by an act of the Legislature of Maryland, that the resi- 
dence was required as the act prescribed. In TrumhulVs case^ 
in the Senate of the United States, from Illinois, the facts did 
not bring up the point plumply. Several of the State con- 
stitutions provide that men in the State judgship shall not be 
eligible to "any political office,^'' nor within twelve months 
thereafter. Some of them in those terms so provide, whilst 
in others the prohibition is enlarged in terms to embrace state 
OT federal office ; whilst in some the expression, during his 
term of service as Judge, is used ; and in others, the term, for 
which he was elected to be the Judge. This question is likely 
to arise anyhow, and especially if the Congress at its next 
session shall claim it to be their right and duty to determine 
whether any State can only be authorized to renew its repre- 
sentation in the Congress, by an enabling act of the Con- 
gress — not the question of the eligibility of an acting or recent 
Judge at the time of his election to the Congress, which may 
possibly arise, but that same question, in the principle of it, 
in respect to men who have recently held other offices, which 
13 almost certain to come up. The Alexandria constitution, 
if it is of force, prescribes that no person shall hold office 



18 

"under that constitution," who lias held office under the so- 
called Confederate government, &c., &c. No such disqualifi- 
cation is prescribed by the constitution of the United States, 
though by the act of the Congress of July 2, 1862, the pre- 
scribed oath is a disqualiScation of any and all to hold federal 
office, who aided voluntarily in the rebellion. Now, then, in 
case that act is repealed, as the writer thinks it should be, for 
want of constitutionality, and a man is elected to the Congress 
by the people who, being unrestrained by the disqualifying 
provision of the State constitution, will give him votes 
enough to entitle him to the return, shall the Congress, or 
should they, admit him. to the seat ; and admit him. because 
the constitution of the United States does not, whilst that of 
the State does, jirovide specially that in such case he shall not 
hold the office ? If so, the State's interdict is a nullity. It 
would be equally clear, or clearer, that a provision in any 
State constitution, to the effect, that a recent Judge, or one ex- 
ercising the office of Judge, by due election or appointment, 
in his State, shall not be eligible to any federal political office, 
is also a nullity. Under such decision or ruling by the po- 
litical or judicial authority, the State constitutions should not 
be encumbered with any such disqualifications. They would 
serve only to give an uncertain sound. And in respect to the 
ineligibility of the Judges, if the State's interdict of elections 
to any political office, is interpreted to be confined to State 
offices in the Jiome administration of the State, and not to in- 
clude federal offices from the State also, the disqualification 
by the State 'is quite useless. The only purpose of the dis- 
qualification is to preserve the integrity of the bench, by 
taking away the temptation to seek popularity by swerving 
their decisioDs to acquire it. Eligibility to the more lucrative 
and distinguishing federal offices, is the principal source of 
temptation. As Patrick Henry said, "bring up the federal 
allurements and compare them with the poor, dontemptible 
things that the State legislature can bring forth." There is 
indeed no other merely State office that is at all likely to 
tempt the Judge to quit the bench, to get it. The purpose of 
' the disqualification would be utterly disappointed, if the 
State's Judge is admissible to federal office. 



19 

It is appropriate to the times that the general subject of 
State-disqualifications for election to the Congress, shall be 
dwelt on to be elucidated; if the writer shall be fortunate by 
argument to throw any light into its intricacies. It has been 
debated in McCreery and TrumhidV s cases, almost to exhaus- 
tion. It would be too voluminous to reproduce the argu- 
ments so powerfully put for and against the power of the State, 
by Randolph and Love, on the one side, and Rowan and 
Quincy, on the other, in McCreery's case, under a State- Statute, 
It is not necessary to dwell on the difference between the 
question, when it arises under the constitution of the State, on 
the one hand, and under an act of the ordinary legislature, by 
which is meant a State-Statute, on the other hand. Every- 
body knows how more significant and less reversible, and 
hence more respectable, is the constitution of the State, than 
is an act passed by its legislature. Besides the specific pro- 
visions of the constitution of the United States, defining what 
requisites a man elected by the people to the Congress, must- 
possess, to entitle him to the seat, the ninth amendment pre- 
scribes that no power retained by a State shall be disparaged 
by the delegation of the powers the States thought fit to con- 
fide to their general government. With only that much 
premised on the general subject, a view will here now be 
presented, which is not so much as intimated in the discus- 
sions to which it has hitherto been subjected, as thorough as 
were those discussions by men of eminent abilities. This 
view will be taken under the concession that when a citizen, 
who is fully in all respects qualified, presents his credentials, 
the Congress must admit him, they being the judges, but not 
the authorized prescribers, of qualifications. This, then, is a 
view to be taken and acted on by the voters in the State, be- 
fore and at the election. It demands the attention of every 
citizen, no less on the subject of suffrage in political elections, 
than in other matters, whether it is his duty to obey the laws 
of the State, Any law his State has enacted, binds him, until 
it is adjudged by the supreme court of the United States, to 
be repugnant to the constitution of the United States, and 
therefore void. No law passed or rule prescribed by tho Con- 
4 



20 

gress, of and by itself, can make void the law of tlie State, 
Hence, thougli tlie man returned to tlie Congress be qualified 
under that constitution, by Lis having the requisites concur 
in him, which it prescribes, the duty of the voters to obey the 
laws of the State, remains in its high import repellant of the 
disfranchised at and in the election, so that he should not be 
voted for. The law of the State prescribing the disqualifica- 
tion might be enforced by the State, by fine or imprisonment, 
or by both, for violating it. The people have not a right to 
elect whom they please, but such only as are within the law 
of eligibility. "W e are not a lawless democracy, nor in a state 
of nature unorganized. 

On this day (September 20th) a letter touching the princi- 
ples under consideration, falls under my eye. It is a letter 
from Hon. J. M. Botts. The subject is of great importance 
to the public. As I believe Mr. B. is in great error, and his 
standing just now may mislead others, I trust to be excused, 
and justified by him, for making this attempt to correct his 
signal mistake. There is much in that letter that challenges 
assent, for it is loyal to the Union ; but no little is in it, that 
ought not to be received as sound, for it is not true to the real 
rights of the States. All he urges tb the effect that the en- 
actments of the Congress ought to be respected and obeyed 
as law, until they are repealed or adjudged by competent 
courts to be unconstitutional and therefore void, is correct. 
Clearly in that principle it may be seen, and ought to be felt^ 
that the acts or ordinances of State legislatures and city coun- 
cils, ought to be obeyed by the citizens within the jurisdic- 
tion, as long as they are in force in the forms of law. If 
popular opinion or individual judgment may determine any 
one enactment to be of no force or of modified effect, so might 
the whole code be set at naught. The leading doctrine of his 
letter, however, it seems to me, has no footing in our system, 
and is violently repugnant to it. He cites the third section of 
the sixth article of the constitution of the United States, 
which requires the oath " to support this constitution," and 
also prohibits particularly any religious test oath for any 
office. He then says : " Here, then, is to be found the pro- 



21 

hibition, and the only proliibition^ upon the action of Con- 
gress :" (to wit :) " that no religious test oath shall be required." 

Now, I am simple enough to apprehend that a single ques- 
tion will show up the fallacy. Has the Congress the authori- 
ty to prescribe an oath disqualifying him who will not take 
it, to the effect, or in terms, that he has done no act since the 
rebellion ended, adversely to the extension of suffrage to negroes ? 
or that in future he Avill advocate negro suffrage ? That is 
not a religious test oath. Who will contend — will Mr. Botts — 
that the Congress has constitutional competency to prescribe 
such an oath, excluding from eligibility, or capacity to take 
the seats in the Congress, all such as could not conscientious- 
ly, or would not, take such an oath ? 

Mr. Botts adds, and labors logically to show that, " the 
true reading of that provision, as it seems to him, is, that 
Congress may prescribe such other qualifications " (than those 
they are expressly authorized to see shall be observed) " as 
their wisdom and experience may hereafter suggest ;" &c. So 
far from its being true that the Congress may impose (and it 
would be an imposition in the odious sense) such other quali- 
fications as circumstances might arise and conspire to prompt 
them to, whilst the coastitution is unaltered, the truth and 
the practical extent of the authority of the Congress, are, that 
they shall see to it that no man shall be admitted, unless the 
qualifications in terms prescribed, do concur in him. If not 
to have prohibited the power to the general government, is to 
have given it authority to impose disqualifications, then the 
constitution of the United States, is not composed of grants of 
power, as all parties have hitherto conceded it is, but it is an 
instrument comprising plenary power, unrestricted by reser- 
vations to the States or to the people, and unlimited, except 
where the limitation is expressed. If that be so, then the 
federal constitution is an absorption of the whole system ; ex- 
cept only powers prohibited to it. That the legislature of a 
State may fix the representative age, or prescribe the anti- 
duelling oath, to which Mr. B. refers, is manifest in this that 
the power is not prohibited to the States by the constitution 
of the United States, and is, by the absence ©f such prohibi- 



•22 

tion, in terms, '* reserved to tlie States respectively." The 
requirement that the members of the State legislatures," and 
certain other State officers, fehall be " bound by oath or affir- 
mation to support the constitution of the United States," is 
not a prohibition on the State to prescribe other requisites for 
State officers. If it were so, then in the many cases in which 
that constitution prescribes no qualifications, the State could 
prescribe none. But, say many persons, this question involv- 
ing the conflict of authority to prescribe the qualiiications, 
cannot arise, except in a case of contested election ; because, 
say they, the Congress is bound to admit all presenting proper 
credentials. If that were just so as stated, still the question 
challenges attention and demands decision, what that word 
proper means ? This question is capable of determination by 
Congress, however, in other cases than those of contestants 
for the seat. In any case, the Congress may look into the 
propriety of the credentials before admitting the applicant 
to the seat. The manner of initiating that investigation 
is provided by a distinct prescription of the laws. See, 
Stat : at large, United States, Vol, 12, p. 80-i. The act 
of the Congress there recorded, delares that " the clerk " (of 
the House of Representatives) " shall, make a roll and place 
thereon the names of all persons, and of such persons only, 
whose credentials show that they were regularly elected in 
accordance with the laws of their States respectively, or {and ?) 
the laws of the United States." Thereunder, the inquiry 
arises, what law authorizes an election to be held at the call 
of a provisional governor ? Beyond, — what clause of the 
constitution of the United States, or section of law, author- 
izes the President to appoint a provisional civil governor of 
A State, in any exigency ? The authority is not to be found 
by fair or endurable construction, within the decision of the 
supreme court of the United States, in the Rhode Island case, 
Luther vs. Borden, 7 Howard, in which the court only ruled 
that the President might and should interpose, under and by 
authority of the act of the Congress of February 28, 1795, 
" on the application of the legislature of the State, or of the 
e;:?:ecutive thereof, when the legislature cannot be convened." 



23 

In such an exigent anil urgent conjuncture, when there is "an 
insurrection " in the State, "against the government thereof,'''' the 
President of the United States may decide who compose the 
legislature and who is tlie governor, all claiming to have 
been duly elected. That decision holds, as expressly, that in 
any case not within the conditions contemplated by that act, 
it still "rests roith the Congress to decide what government is 
the established one of the State." That act presupposes a 
foregone election, to say no more. It did not grow out of a 
rebellion against the government of the United States, nor 
does it apply to such a case or the case of a State having 
failed or refused to hold the elections. So far is that act, as 
well as that adjudication, from conferring authority on the 
President to appoint a civil governor. Much less does it con- 
fer on his appointee to the chief executive magistracy of a 
State, any authority to order an election of the State's repre- 
sentatives to the Congress. Of very little value will be the 
credentials so derived. The propriety of credentials, into 
which the Congress may examine before the producers of 
them are admissible to the seats, is comprised in, and can be 
a lawful consequence only from, the regularity of the election. 
Such elections will be irregular, and the consequential cre- 
dentials will be without validity. The Congress has not con- 
ferred, nor has that body the constitutional competency to 
confer, the authority on the President of the United States, 
to appoint a civil governor of a State. Such authority would 
vest him with sovereign power ; whereas, by the constitution, 
he is merely the agent of the sovereign power. It is its duty 
to see to it that each State shall have the republican form, 
and the same duty is devolved on the President to the full 
measure of the executive competency ; but yet, nevertheless, 
the authority to make such an appointment, cannot lawfully 
be entrusted to him by the Congress, nor, consistently, by the 
people of the States, even by amending the constitution of 
the United States, because such authority in him is utterly 
incompatible with republican forms. By the existence of 
such authority in the President, if it were formally conferred 
on him, the constitutional guarantee of the republican form, 



24 

would be changed into an anti-republican guarantee of dicta- 
torial competency in the President. It is not possible, in any 
sense,, or by any means, to consist witli self-government, that 
the election of their governor, without the antecedent consent 
of the people of the State, both freely and formally given 
by themselves, shall be so far removed from them ; and such 
consent so given would essentially change the government — 
obliterate the republican form — and impress on it and fix in 
it another character. 



THE RIGHT WAY 



["Does this power of restoration not reside somewhere?" That 
is the question put, this 9th of November, by one of tlie most re- 
spectable and conservative journals in the United States. The ques- 
tion is pertinent and profound ; and the purpose of these pages is, 
chiefly, to answer that the power does reside somewhere, but, alone, 
in the Congress of the United States ; and that the President of the 
United States only had the authority, and, to this extent, only aa 
the commander-in-chief of the army and the navy, to take the in- 
cipient step of fixing the times for electing members of the Congress, 
with the view, when such elections should be sanctioned by the 
Congress, but not until then, of retiring the military forces from 
these States. Says that journal, as all who favor the President's plan 
seem to think, " it matters not what we call the means the President 
may use to enforce it." It is just there the shoe pinches. Thecon- 
stitution appoints the oncans ior the end, to wit, that the Congress 
shall, because the States in rebellion failed to, fix the times and 
2:>laces for electing tlie members. In the elections by the authority 
so given to hold them, the restoration, which is the end, would be 
reached. By any other means to restore these States, consistently 
with the system, as well might an attemj^t, call it what we might, 
be made by any soul to get to Heaven, consistently with the Chris- 
tian's creed, witiiout the use of the means divinely appointed to 
that blissful end.] 

Petersbueg, Ya., May 16, 1865. 

This is the gravest constitutional question that has accrued 
upon the North American experiment of self-government, 
since the rebellion of the colonies against the rule of the 
British King, in the success of vrhich the system of written 
constitutions, with concurrent laws, had its origin. Though 
my argument may be dull, its subject— the observance of the 
laws — is of interest to society, so extensive that every mem- 
ber has a stake in it, either present or prospective. Though 
my discourse on every point may not be compact, it has cost 
me a labor which only earnest zeal would have encountered. 
The object was to discern through the laws what is just to be 
done. 

Every citizen has the right, even under military rule, and 
should be allowed the liberty, if exercising it in the right 
tone and manner, to inquire into the conduct of the goveru- 



26 

inent, and by argument to endeavor to correct it. If a fair 
exercise of that liberty is offensive to tlie governing power, 
and may be silenced and suppressed by it, in this country, 
then the noble experiment of self-government our fathers set 
on foot and gave a good prospect of success to, has ended al- 
ready in a failure. The right spirit is not vituperative or fri- 
volous ; and whatever is either, ought to be suppressed, whilst 
the military rule is tolerated. Whatever is solemn, which 
implies that it is within the facts and enjoined by principles, 
and is intended to correct a wrong, ought to be indulged, and 
will be, unless they who are clothed with the limited authori- 
ty of the system, are bent on abusing it, and exerting usurp- 
ed power, permanently. 

A close and generally accurate observer and a deep thinker 
has said : The people generally think and almost reverently 
believe that the men in authority use a great depth of thought 
and very much sagacity in their operations. The fact is, that, 
in all countries, the ministers of state seldom think but of 
providing for the present and usual contingencies, In doing 
that, they constantly follow the open beaten track before 
them, governed by precedents. This method does very well 
for the common course of human affairs, even is the safest ; 
but whenever circumstances of a new nature arise, sad blun- 
ders occur, at least very often. Indeed, with us in these 
States, it is fortunately observable, and it will be very fortu- 
nate for the people, if the men in authority will be only 
faithful and diligent to observe, that the framers of our sys- 
tem have done the thinking for them, and defined their duty, 
even in unusual conjunctures. Action in the right way, is all 
that remains to be done. 

There are some views, founded, I conscientiously believe, 
in everlasting truth, and closely appertaining to the passing 
conjuncture of the public affairs of this recently disturbed 
and not yet quite pacified country, which I have thought ac- 
ceptable and desirable to be expressed and promulgated. By 
proposing them for publicity in this form, I am (but doing 
that which through much of my life I have done, that is) la- 
boring for the public benefit. 



• • 27 

"When the Federail Union was forme J, the gravest controvert- 
ed question was, what amount of delegated authority its gov- 
ernment should be clothed with. The representative men of that 
generation, who favored, and, as the federative plan progressed 
for uniting the colonies which had achieved their indepen- 
dence by a rebellion against the governing power of the mother 
country beyond the Atlantic, urged on a closer union, were 
called "federalists;" and other names, even that of "tories," 
were ascribed to their opposers. When the scheme had been 
instituted, and ever afterwards, from 1787 down to the year 
1861, they who succeeded in instituting the government, as it 
was, by and under the constitution of the United States, as- 
sumed, or had ascribed to them, the party designation of 
'^Bepuhlicans f and the name of federalists which they had 
lost, was freely bestowed upon those who it was contended 
sought to gather to that government more and larger powers 
than the constitution intended, or could be fairly interpreted, 
to confer on the functit>narie3 charged, in their co-ordinate 
relations, with administering it. The stout contest, in num- 
berless elections, struggled on, never relenting, through three- 
quarters of a century, exhibiting its fierceness in nullifica- 
tion, in 1832, and in secession, in 1860-'61.'^ At no other pe- 
riod were the party ascerbities so subdued, as during the ad- 



*The advocates of the disorganizing doctrine of secession, were 
long since and often and every wliere outweiglied in argument, as 
they inferentially confessed by seeking to take shelter, as they al- 
leged they might, in the reservation of the rigiit by Virginia, when 
her convention ratified the federal constitution. They asserted that 
her reservation of the right enured to all the States. That-was a 
mistake of theirs, in point of fact. Virginia made no such reserva- 
tion. The Isiuguage oS ^^the foi-)n of ratijlcafion" was, as follows: 
"We, the Delegates of the people of Virginia, &c., &c., Do, in the 
name and in behalf of the people of Vii'ginia, declare and make 
known that the powers granted under tlie constitution, bein'g de- 
rived from ihcj)C02Jle of the United States, maybe resumed by Hie.m^ 
wliensoever the same shall be iDcrverted to their injury or oppres- 
sion, and that every power not granted thereby remains with them 
and at their will." — Va. Debates, p. 4G'J. It was not that the pow- 
ers were granted by the several States and niight be resumed by any 
State, at will. And Patrick llunry said, at the time, June, 17S8: 
"The question turns, sir, on that poor little thing — wc, the people, 
instead of the States of xVmerica." Ho said it was "an alarming 
transition, from a confederacy to aconsolidated govonuncnt." — p. 42. 
Yet it is true that many and larg(j rights and Y>ovvers were reserved 
to the States, and are still held to be inviolable. 



28 

ministration of Monroe, of wliicli it has been said, that lie 
found the federative edifice of his country's Union, as Augus- 
tus C^SAR found his imperial city, built of brick, and left it 
re-built of marble. Previously, in 1806, with what design 
may never be fully developed, but suspected of hostile inten- 
tions against the United States, Colonel Aaron Burr descend- 
ed the Cumberland and Mississippi rivers, "with only a few 
unarmed men." This allusion is introduced mainly to preface 
the observation here, that from 1801 to 1809, that government' 
was administered by President Jefferson, on the doctrine of 
state-riglds 2in&]jopular interference,^' and for a distinct repulsion 
of the policy of the federalists. Again, in 1832-'3, with a 
deeper intensity, the struggle of the rights of the States 
against the powers of the General Government, stirred the . 
public councils and the popular heart. The question dividing 
society, involved the duty of allegiance by the citizen, to the 
State, or to the United States, Did he owe that allegiance^ 
in the disruptive issue of the contest, to the one or to the 
other. The citizens, on the one side or the other, could claim 
tto ascendancy for the one set over the other, on the score of 
public intelligence, or private or public worth. The states- 
men, on the one side or the other, could justly lay no claim 
to the pre-eminence, on the score of mental capacity, or other 
talents, or excellence of public service. The contest, for 



*A sagacious writer, in 1838, v/rote : "The doctrine of the sove- 
reignty of the people, was nurtured in the townsliips in New Eng- 
land, until it took possession of the people of the State ; every class 
was enlisted in its cause ; battles v/ere fought and victories obtained, 
for it; until it became the lav/- of laws." "Not a man in New 
England iy to be found, who would acknowledge that the State has 
any right to interfere (in any township) with their local interests." 
Yet, they claim the right and exert the rc-iuisite brute force, through 
and by the general government, to interfere with our State's local 
interests. The population and territorial extent of our State as 
much exceed a township, as the State is exceeded by the United 
States under the general government. The same principles are no 
less co?i8^iii^tecZ to protect the State than the township, against that 
interference. Indeed, the State isj far more protected by the consti- 
tution of the general government, than is a township or a county 
jirotected by the constitution of the State government. The theory 
of the former is that all power not granted, is reserved to the States 
or to the people thereof; whereas the theory of the latter, is, that all 
power not reserved to the people, is granted to the government of 
the State. 



29 

auglit the most virtuous and wisest could do, was, in 1861, 
reduced to the arbitrament of the sword. In this bloody 
trial of the issue, if those on one side can claim superiority, 
on one point ; the other side may, on some other point. It 
would serve no purpose to the advantage of all, or probably 
of either, on the whole, to make the comparison ; and it is the 
advantage of all which it is now most desirable to ascertain 
and advance. The battle is over, and the conflict of logic had 
gone before, and could find no end, until the theory of the 
State's right of secession, as claimed, was buried in the co- 
ercive power of the Federal Union. The question is, have 
the conquered suffered enough, or should they be subjected to 
pains and penalties for crime ?* Suppose they of the other 
side, in the protracted and embittered contest of the states- 
man, the logician and the orator, with almost whole States 
and crowds of patriots supporting each side, had been over- 
come by the physical force of the army in the field — ought 
they of the other side to be by those of this, subjected to 
legal pains and penalties for their former persistency in the 



*So apt an illustration of my views, has lately been cited in the 
Petersburg Index, from the pages of ancient history, that I will in- 
sert it here, so that it sliall have this record to assist in jjerpetuating 
the noble sentiment and rescuing this Ciiristian Republic from the 
deep disgrace of more cruelty than the men of A.D. 161 were willing to 
practice. That instance of clemency \vas without the consideration 
and inducement to it, which I have herein urged, that one promi- 
uent cause of our recent war was found, on the part of many en- 
gaged in bringing it on, in a chronic controversy as to the existence 
of a right which many years and mighty men had struggled and 
tailed to settle, until the sword was the only resort for a cure of the 
disease ; 

In the second century, an insurrection against the Roman author- 
ity broke out in Syria and tlie East, headed by a pretended descend- 
ant of the patriot Cassius, who had conspired against the mighty 
C!ajsar. It ended in disaster and failure ; and nothing seemed to be 
left but vengeance upon the adiierents of the rebellion. Under such 
circumstances, here is the letter wliich the royal conqueror — the 
noble Antoninus Pius— M^rote to the Roman Senate, and which de- 
serves to be written in letters of gold upon the historic page : 

" I beseech you, Conscript Fathers, not to jjunish the guilty with 
too much rigor. Let no one be put to deatlx. Let the banished re- 
turn to their country. I wish I coujd give back tlieir lives to those 
who have died in this quan'ol. Revenge is unworthy of an Empe- 
ror. You v.'ill i)ardou, therefore, the children of this Cassius, his 
son-in-law, and his wife. Let them live in safety — let them retain 
all that (.!assius possessed — let them live in whatever place they 
choose, to be a monument of your clemency and mine." 



30 

Federal doctrine of coercion and denial of the doctrine of the 
State's right to secede ? The question is asked, and will be 
left to the men in authority to be answered. It may be that 
it must be left to those who shall come after us, and whom 
the lapse of time, in after ages remote, shall impress with 
the knowledge and wisdom to sound the depths and ascend to 
the heights of the argument which that question involves. 
It will be wise, however, let it be suggested, that they who 
are charged with the duty, or the privilege, of solving it for 
the present, shall not be unmindful that the right of revolu- 
tion is a doctrine of unalienable tenure, of which no free peo- 
ple will divest themselves, and no people can deprive their 
posterity. The people of the South are now quiescent, and 
they are giving multiform evidences of a cheerful willingness 
to be acquiescent, claiming only the right to assert that now, 
when hostilities are ended, they are a free people in a federa- 
tion of States, each of which is entitled to a republican repre- 
sentative government. We, the people of the State, desire 
only that the improvided situation in which we are plunged, 
on a sudden, and from which the men in power profess a de- 
sire to extricate us, shall be relieved by a resort to the re- 
ceived maxims of civil liberty, the chief of which is the fairly 
ascertained consent of the governed. "We wish all men every 
where to understand, that we are not made "of stuff" so flat 
and dull, 

"That we can let our beard be shook with danger, 
And think it pastime." 

It was said of Austria: "True, she had been conquered 
once, but it did not therefore follow that she should be con- 
quered again." The South would not have been, nor couM 
she be, if there had been, or should be, sufficient cause for 
war. God protects the right. 

The meeting of " Conservative Union citizens," at Frank- 
fort, Kentucky, Hon. Joseph R. Underwood, President, held 
the other day, takes the rigid constitutional view of the present 
aspects of the never-ending subject of negro-slavery — that is, 
right for any slave-holding State that was not in the rebellion 



31 

— yet, though right in principle, not wiso to be insisted on, 
beyond a demand for gradual emancipation. Beyond that, 
the State would be isolated and impotent. That view, strict- 
ly observed before the war, would have accelerated emanci- 
pation, and might have prevented the war. The view is that 
the subject belonged absolutely and exclusively to the State 
and the people thereof. But the States in the rebellion made 
or accepted the issue at arms, and ought to abide the result. 
How far debtors who contracted debts on the faith of their 
slave property, and also innocent orphans and widows, in 
these States, may of right demand compensation, is a question 
not yet closed, nor can be, to the end of time, unless compen- 
sation be given those classes. It is conceded that such only 
of them should be paid, as shall show themselves guiltless of 
the attempted secession — guiltless, except by pretended "con- 
federate" legal constraint from which they could not escape, 
when the Union could not protect them. 



Peteesbukg, May 17, 1865. 

Scarcely any other problem in the politics of this or any 
other country, in the past ages, is so difficult of solution as 
this, of the extent of the powers either relinquished by or 
remaining with the several States in the federal Union. Men 
as honest as sagacious, have discussed the complicated sub- 
ject. They have failed to reach the same conclusions. One 
thing, however, is certain, for all concur in this, that the con- 
stitution of the Federal Union contains no provisions for its 
dissolution. Its framers may have supposed that it would be 
permanent and 'perpetual. As Philips says : " Troy thought 
so once ; yet, the land of Priam lives only in song ! Thebes 
thought so once ; yet, her hundred gates have crumbled ! 
* * * In his hurried march, Time has but looked at their 
imagined immortality," and all its vanities. Our fathers who 
founded cur federative system, knew that the countries of 
Pemosthenes and the Spartan, which Philips also depict 






«d, had existed and passed away.* Then it is not likely 
they imagined the system they founded would never be 
subverted. Too knowmoj to believe it would never be 
subverted, they were induced, we must suppose, as were 
the founders of former systems, to provide no mode for 
its overthrow, for the reason that they foresaw it would be 
more difficult for their posterity to find out the mode by which 
it could be subverted, than it would be to resort to it, if it 
had been provided. I doubt the wisdom of their policy dis- 
played in the failure to provide how the federation might be 
ended.f Stately as the fabric is, and stable as it was designed 
to be, and yet I wish it shall be, the posterity of its builders, 
so proximate as thus early, have already made an attempt to 
break it up. To the credit of this posterity, however, let it 
be observed and remembered, that whilst they renounced the 
forms of the Federal Union, they did not seek to expel the 
princwies of civil, political or religious liberty, on which it 
was founded by the original builders. In and by the recent 



* Since the text was written, the writer has re-read De Lolme, on 
the English constitution, which he read first in 1826. That enlight- 
ened coaimentator quotes Montesquieu, thus: "Have not Rome, 
Lacedajmon, and Carthage jDerished ? T/te E)iglish government, also, 
will perish when the legislative joower shall have become more cor- 
rupt than the executive." Though, says De Lolme, I do by no 
means pretend that any human establishment can escajie the fate 
to which we see everything iu nature is subject, nor am so preju- 
diced by the sense I entertain of the great advantages of that gov- 
ernment, as to reckon among them that of eternity, I will, how- 
ever, observe, in general, that as it differs by its structure and 
resources from all those with which history makes us acquainted, 
so it cannot be said to be liable to the same dangers." 

t A distinguished friend on reading the text, writes me : " That a 
nation should not provide for its own dissolution, is not wonderful ; 
but that a mere confederciGy should, is an act of ordinary foresight." 
That is just the idea expressed in the text — " how the federation 
might be ended." The difference of opinion then is not "whether it 
would have been wise in the founders of the federal system to have 
provided, "as an act of ordinary foresight," some mode of dissolv- 
ing it for sufficient cause ; but the difference is whether the system 
they founded is constituted a nation — or is it a mere confederacy . 
To the foreign world, I admit, it is a nation. Of itself, disconnected 
w^ith foreign relations, how Obviously does it show itself not to be a 
nation, in the fact that it has not the power to regulate the right of 
suffrage by which the representatives from its component parts, the 
States, are elected to fill the federal councils? A nation without 
the power to elect the representatives to make or to execute its 
laws! 



33 

attempt at its formal renuuciation, the men wiio started that 
attempt and prosecuted it with vigor, gave gallant attestation 
of their devotion to the principles and provisions of the fed- 
eral constitution, which in the outset they incorporated in the 
constitution of the " Confederate " States. It is remarkable,, 
and to the praise of the " Confederate " constitution, that it 
did not retain, but radically rejected the clause, and refused 
to insert any like it, by which the African Slave Trade was 
allowed for twenty years by a provision in the constitution of 
the federal Union. Judge by that fact, world of mankind, if 
the South desired to rob benighted Africa of her savage sons, 
even for civilized servitude. That gallant and vigorous at- 
tempt, so purged of the African slave trade, had so much 
prospect of success, that it involves a vast amount of damage. 
The work to be done, is to get the States that made the at- 
tempt, back into the harness, that each may pull and all pull 
together again. 

The case now is that no manner of taking the fabric to 
pieces, whether into two or more, was provided, but an attempt 
has been made that has thrown some of its parts out of joint. 
The disjointing of its parts has done damages which all do, 
or should, desire to see repaired. It is desirable to ascertain 
what part of the damages can be repaired, and wisdom would 
seem certainly to dictate that such as cannot be mended, shall 
be contemplated, with patient resignation, if not forgotten 
altogether. A loss that cannot be replaced, must be borne. 
It is but natural that in rectifying any contrivance of human 
skill, the principles and the process of construction shall be 
consulted, no matter to what extent or how it was put out of 
sorts. • Nor is it important to know when or by whom the 
disorder was produced. If it was done just now or long ago, 
by a wise man or a fool, by many or by few, with good or 
evil designs, the work in hand is to repair the injury, as far 
as possible, and, unless there is good cause for delay, to do it 
promptly. Whoever did the injury, can, whilst it is being 
repaired, or afterwards, be taken to account. 

In the business now before us, that is, restoring the States- 
tO' their practical relation to iLc Union, they still retaining-. 



34 

the theoretical, or constitutional, or if any prefer to call it, 
their institutional, connection, as no mode of dissolving it 
Avas provided by its founders, we may, Avith profit, inquire 
whether there is any mode to be found in the principles on 
which it was constructed, by which it could have been dis- 
solved, as to the whole of its constituent members, or any of 
them, without the damage the wrong jittempt has wrought. 
By finding out how it might have been dissolved, we will 
discover the principles by which it may be reinstated in its 
practical working. It is believed, and will be taken for granted, 
as if agreed by all, that the main fundamental principle — the 
mudsill — of the fabric, was that the majority shall govern. 
However that principle is departed from in any or however 
many special cases, there is the fulcrum after all, on which 
the lever of the republican creed is established and tui'ns to 
the sweep of the popular sovereignty. Though the plurality 
rule prevails in special cases, it is exceptional, and in every 
case it is only to escape greater inconvenience. It partakes 
of the principle of the majority, for it is more than any other. 
Though the special prescription that two-thirds or three- 
fourths, or the whole body with unanimity, may or must de- 
cide, sometimes prevails, it is for the protection of popular 
sovereignty, and is invariably a restraint on the authority of 
the freople's representatives, and almost always intended to 
give sability to the people's institutions, as they have estab- 
lished them. All such prescriptions are strictly in unison 
with the early teaching of the fathers of the system, that ex- 
isting forms shall "not be changed for light and transient 
causes." It will be perceived that the observation is pertinent 
here, that the States ratified and established the federal con- 
stitution, no less to secure the blessings of liberty for their 
posterity, than to form a more perfect Union. It should not 
be lost sight of, that in starting the mode of dismemberment, 
which has failed, the disallecl!^d States, be it repeated, did 
not reject the principles of the federal constitution, but their 
attempt was to renounce only the forms of the federal Union. 
Now let us apply the principle that the majority shall 
govern, to find, if we can, whether there is any peaceful mode, 



35 

as -the federal union was not likely to exist forever, by which' 
it- might have been, or may le for cause, dismembered. The 
way by which it was established, must be searched, and the 
facts so ascertained will materially assist us and reconcile us 
to the conclusion we will arrive at. The two most important 
facts we cannot fail to find by the retrospection, are, first, that 
the States, severally, each for itself alone, ratified that consti- 
tution ; and, second, . that the States which came into thef 
Union after it was formed by the first nine that ratified it, 
did not accede to the Union, as of right, but were admitted 
into it. The authority was in the States already in the Union, 
to reject the applfpation of any State seeking the admission. 
If any acceded, they were the four last which ratified'the eon^ 
stitution, after the Union was formed by the ratification of 
the other nine. All the States since have been admitted, cer- 
tainly. How has each State been admitted ? The archives 
show, by the votes of a majority of the States in the Union ' 
at the several times of each new State's admission. The light 
shed by these facts, guides safely to the conclusion, that no 
State can dissolve it^ connection so formed, in any other way 
than by the consent of the majority of the States in the 
Union, at the time any one desires to go out. By analogy to 
its application to be admitted, \z ought to apply for the con- 
sent of the other States to let it go out ; which consent, by the 
same analogy, the majority of the others might give. In de- 
fault of the formal application to retire, the chief executive 
authority ought, as Jackson and Lincoln did, to issue the 
proclamation of warning to the insurgent Stats. But yet, the 
federal government is not charged with the duty of making 
•war on a State in the Union, nor has it any such authority, and 
the resisting State is not yet out. Therefore, that government 
ought to supply the neglect' of the State to apply for permis- 
sion to withdraw. This neglect could and should be supplied 
by a simultaneous proclamation by the President, to the other 
States, to hold conventions, severally, and to advise him^ au- 
thoritatively, each State for itself, whether the people thereof 
will consent to the withdrawal of the disaffected State. If 
the majority so signify their willingness, the disaffected one 
6 



36 

would go out in peace. That would no more destroy the life 
of the nation, than the loss of a limb destroys a man's life. 
The nation would survive a loss of any number of the co- 
States, less than a majority of them all. The pathetic appeal 
to the people of the North, to save the life of the nation, was 
a deception. 

That is just exactly the doctrine embraced in " the form of 
ratification " of the constitution which was reported by Gov- 
ernor Eandolph, in the Virginia convention, and adopted, on 
the 25th of June, 1788, and which has been so often misin- 
terpreted and misjudged by the secessionists to be in support 
of their creed. On that form of ratificat^n, they relied as 
showing'that Virginia reserved that right, and that her reser- 
vation thereof enured to each of the other States. The lan- 
guage of that form is : " We, the delegates of the people of 
Virginia, &c., declare that the powers granted under the con- 
stitution, being derived from the people of the United States 
may be resumed by them, whenever perverted to their oppres- 
sion ; and that every power not granted remains with them 
and at their will." Surely, that means, not at the will of the 
people of Virginia, but of the United States ; and to be resumed 
by whom ? and when ? Why, clearly, not by the people of 
Virginia, but of the United States, when oppressively used, 
and so used by whom ? JN'ot by the people of the United 
States, but by the constituted authorities ; and this is shown 
most unequivocally by the next clause in that form of ratifi- 
cation which has been misquoted and misapplied for more than 
three quarters of a century. That next clause is — and "there- 
fore no right of any denomination, can be cancelled, abridged 
or modified, by the Congress, by the Senate or House of Kep- 
resentatives acting in any capacity, by the President or any 
department or ofiicer of the United States, except in those 
instances in which power is given by the constitution for 
those purposes ;" &c. That demonstrates that the oppression 
deprecated was guarded against as likely to come, not fram 
the people of the United States, but from the constituted au- 
thorities ; and in this case it was declared that the granted 
powers might be resumed by the people of the United States. 



37 

And the question recurs, /ioty in such case resumed? It is 
obvious, the right to secede not being reserved, the granted 
powers could in no other way be peacefully resumed, except 
by a majority of the people of the United States acting by 
States. 

In the light of that, which is the only peaceable mode of 
dissolving the federal Union, it will be seen that the States 
which lately attempted to withdraw, were in fault, but not 
more in fault than the government of the Union was derelict 
to its duty and peaceful privilege. If the dissatisfied States 
were in fault in not making formal application for the consent 
of the, other Stat«; so were the authorities of the Union in 
fault for not applying to the satisfied States to signify their 
consent to the disruption. But suppose the loyal States dis- 
sent ? In this case, time will have been gained for reflection 
— ^^which might be all that was necessary to secure a recon- 
ciliation. Suppose the disaffection remains, when the dissent 
of the co-States is ascertained. The arbitrament of war is 
still accessible, if it must come. That there should not be, 
nor indeed can be, any necessity for war, is as clear and abso- 
lutely certain as that the civil administration of the govern- 
ment of the Union, could be shaped so as to be as coercive 
upon any State or set of States gone out, to make them come 
back into the Union, as the fiercest war with deadly arms. If 
a resort to the coercive energy of the civil power, is not pre- 
ferable to war for " preserving the Union, when a State (or 
several) has become dissatisfied with the government," 
then there yet remains, in this nineteenth century of the 
Christian age, the deplorable alternative of a return to the 
usages of savage life, to sustain civilized society. In any 
crisis, and at all hazards, an attempt should be made, with 
persistent vigor, to escape that return. Tell me not, that 
there is less savageness in the shell thrown from afar, than in 
the club wielded at hand. Tell me not, that man must re- 
main as he was, nay, as he is, and not become as Christ in- 
tended he shall be. We boast an advance beyond the nations 
that exist, or any this has survived, and our boast is vain a.nd 
vicious, if it be not true that a return to savage usages is not 



38 

neodful, but is despicable. There is less danger that the 
landmarks of liberty will be obliterated by ilm milder exer- 
cise of the civil power coercively, than by the frightful and 
unchristian demonstrations of tlie war power. So much is 
enough to indicate how peace be ma}'- maintained and the 
Union reassured on any future occasion of a threatened dis- 
ruption, or of one actually occurred. 

The highest duty of man to his fellow-intelligences, pleads 
trumpct-tongued against a resort to arms. It demands a resort 
to the civil authority, to the utmost measure of its capacity to 
coerce peace between the States, in preference to war to con- 
quer a peace. That highest duty of man to man, is by all 
possible means to avoid the destruction of human life. Our 
system, especially and pre-eminently, utters forth that de- 
mand. It has its fountains and all the channels of its flow, 
in Friendship, Patriotism, and Humanity. The waste of hu- 
man existence is not among the objects to accomplish which 
man is gifted with next to omnipotent powers. It is not the 
impulse or the purpose of our system. It should be shunned, 

"The rolling waves?, the sun's unwearied course, 
The elements and seasons, all declare 
For what the Eternal Maker has ordain'd 
The powers of man : we feel within ourselves 
His energy divine : He tells the heart 
He meant lo make us to behold and love 
What He beholds and loves, the general orb 
Of life and being." 

Our system in its theory, is in full accord with the poet's 
noble and just expressions, and its practice cannot be in har- 
mony, unless it abhor and avoid war. 

The application of these views to the solution of the pres- 
ent situation, is plain and easy. The lately disaffected States 
and the coercive government of the Union having both been 
in default — the disaffected States having been overcome by 
"overwhelming numbers and resources," and having suffered 
a spoliation of nearly all their affluence, and the slaughter of 
the flower of their youth, and of the vigor of their manhood 
— and the Union having been triumphant thoroughly, though 
tardily — let the one return to the Union and enjoy the bless- 



39 

ings of liberty the constitution promises, and tlic other dis- 
play the benignity that befits the conqueror, especially one 
occupying the vantage ground of snch superior resources. 
The principle that the majority shall govern, strictly applies 
in restoring the recently disaffected but now reconciled 
States. That principle can best be displayed in the passage 
by the Congress of an enabling act of amnesty. This plan 
would diffuse its genial warmth thoughout the States, and 
tinge the whole horizon with its radiance. 



Petersburg, Va., May 18, 1865. 

My last letter suggests that the States lately "in rebellion," 
so to designate them, shall be restored to their " practical re- 
lation " in the Union (as President Lincoln verv, correctly 
designated the proposed operation) by an enabling act of 
amnesty. The difficulty of selecting the right way of doing 
the thing, is perplexing indeed, owing to the complexity of 
the federative system. President Lincoln was not fully satis- 
fied with the mode he proposed, in his Amnesty Proclamation, 
8th December, 1863. He generously confessed that the opera- 
tion was dif&cult, and that it might be that his plan vv^as not 
the best. He suggested the best he could with his (then) 
present impressions, and declared that " it must not be under- 
stood that no other possible mode would be acceptable." 

Let it be noticed that the social compact of the State is not 
dissolved. The people of the State are not thrown back into 
a state of nature. Nor is the constitutional compact of this 
State with the others in federal union, dissolved. The ques- 
tion, therefore, is (not one of abstract expediency, how the 
State shall be restored, but) one of constitutional power and 
obligation. It is a question of legal right. The framing 
timbers of the State's structure are all in their proper })laces, 
in their sockets. It is only the weather-boal'ding and interior 
finish that are stript off. If any like the simile better, the 
State is a skeleton, needing to be reclothed with fiesh and 
blood. All it3 ofliccs ptill eaust, and only n(X)d to be filled. 



40 

The State is now under military rule. It is in the condi- 
-tion, strictly, of a conquered province ; but the purpose is to 
re-establish civil government. This is the design avowed by 
the men in the federal authority, to be intended by them, and 
to be accomplished in " the republican form," as the consti- 
tution enjoins. This State (and each of the others) has a con- 
stitution and a code of laws of its own, which were in force 
before " the rebellion." Each State and the people thereof 
had "rights reserved," which the federal authority cannot 
touch, without subverting the system. Each, for instance, 
has the reserved right to regulate suffrage in the popular 
elections. Each has its criminal code. Scarcely any State 
has in its constitution any provision in conflict with the fed- 
eral power ; and if any has, it is subject to be overruled by 
the federal authorities. These and kindred observations 
might be enlarged the length of a volume. Very much, then, 
in restoring the State remains ; and yet much needs to be 
altered. Owing to the delinquency in which the States have 
been caught, they must be clothed with newness of life. 
Whatever there is in the existing forms of the State, that is 
incompatible with the objects of the federal power in its suc- 
cess in "crushing the rebellion," may be obliterated ; and 
should be, if rightly done ; and whatever is not incompatible 
with the success of that power, needs to be revived, because 
the rebellion suspended the whole. How can this be done ? is 
the question. I repeat, by an enabling act of amnesty. The 
provisions of such act to extend pardon, must be to this ex- 
tent, at least, that the State, as a body politic, shall be relieved 
of the incapacity which by its delinquency it has incurred ; 
and its enabling provisions must prescribe that the State may, 
and when it shall, elect its representatives atid senators to the 
United States Congress. 

• This plan for restoring the lately disaffected States, to their 
practical relations in the federal Union, is deduced from the 
first clause of th(^ forth section of the first article of the con- 
stitution of the United States ; and it is justified by the analo- 
gies to be drawn from the admission of a State from the ter- 
ritorial condition, and of a State acquired by purchaso, as 



41 

Louisiana was, or by conquest, as Texas was. In cacli case,- 
an enabling act was passed by Congress, either previously to 
or presently with the admission of the new State. It is true 
that, in one sense, these States lately disafiecfced, and now 
sought to be reconciled, were at no time out of the Union. 
The States which remained loyal did not, any of them, con- 
sent that the others or any of these might retire. They were 
out of the Union in the sense that, they sought to be. They 
■were still in it, in the sense of the dissent of all the others 
which persistently made a struggle to make good that dissent 
which is so significant in the result. If the State was not out 
of the Union, the government of the Union had no authority 
to make war on the State ; and if the State was out, when the 
war was made, its citizens are not chargeable with treason. 
The Federal authorities conceded that the confederates were 
a belligerent power. It is clearly diaUowed by sound princi- 
ples of law, as it is repelled by all respectable morality, that 
the State shall be held to have been out of the Union for 
war purposes, and still to be remaining in for any purpose of 
accountability on criminal charges against the citizens, now 
when the war is ended. 

The ideas prevailing on this point, whether these States are 
in the Union or out, are conflicting and confused; and also, if 
in, for what purposes they are in. That they are in, now, in 
some sense, since the rebellion has ceased, is not questioned. 
Whether they were out, in any or what sense, during the rebel- 
lion, is not now so important. That they are now in, on an equxil 
footing with the States not in the rebellion, but which resisted 
it, is contradicted by those who assert that claim of equality. 
The contradiction is manifest in this that they who assert that 
equality, are contending that the President h'as the authority 
to appoint provisional . governors for the States in question. 
That these States are without governors, when each had one 
acting, shows that they are not practically in the Union, and 
therefore are not in on an equal footing with the others : and 
that they may, by any means, be supplied with governors,- 
show that i\xong\i ;pmciicalhj out of the Union, they are still 
in theoretically. If they are out in theory, the Trcsideut ha& 



49 

no power to take tlicm in, in practice ; and if they are prac- 
tically in, he has no power to appoint their governors. His 
duty to take care that the laws shall be executed, confers on 
him no authority to make a law or to appoint a public oflicer. 
Then it would seem to be just and proper that these States^ 
having failed to maintain the doctrine of secession, and being 
compelled to retain the federal relation, should not be deprived 
of any rights they had before the struggle ; excer.ting only such 
rights, whatever these were, as, by their existence, gave origin 
and progress to the struggle. Of these contested rights, there 
were but two, to wit : secession of right, and the right of 
property in negro slaves. This right of property, whatever 
extent of precipitate disruption it m.ay attain imto, or how 
many masters may consent never again to exercise it, remains 
as yet in its constitutional and adjudicated legal sanctions ; and 
the right of secession, it would seem, will never again be claim- 
ed, unless by such (to use Milton's figure) as would " ride the 
air in whirlwind, and make such wild uproar as hell scarcely 
could hold." It does not appear that these States have lost 
any other rights — the right to regulate the right of suffrage,* 
for instance, or th^e rights of legislation and judicature — or the 
right to be represented in the federal councils. Each State 



* " A power," that is truly, as President Johnson justly declares 
in his Proclamation appoiutinii; a Governor ad interim for Korth 
Carolina, which " the joeople of the several States composing the 
Federal Union, have righteously exercised from the origin of the gov- 
ernment to the present time." Upon that just and dignified conces- 
sion, not less happily exj^ressed than conceived, the question ai'ises, 
why should not other landmarks of our constitutional republican po- 
litical freedom, that are equally obvious, righteous and honored, be 
equally observed ? Why not? 

Not only is it true that the Congress has no authority to interfere 
in the matter of suffrage in the States, but it is so on the soundest 
views. The authority could only be falsely claimed by inferonce 
from that provision of the Federal Constitution, w^hich guarantees 
to each State the republican form. This is a far-reaching authority, 
but if it extends to the regulation of suffrage, it would equally em- 
brace and confer power on the Congress to interfere with the judi- 
cial tenure, and on the pretence that during good behavior, or for a 
tenure of seven or more years, is too loose, or too long, to be recog- 
nized as being republican. Besides, there is no limit to the federal 
power, if the doctrine is toprevailthatit embraces whatever facility 
or function is not prohibited. The right rule, the only ellective 
limitation, is, that the claim of any power must be shown to have a 
lirm footing in a clear grant. 



43 

retains the right to elect its legislators, and its judicial and 
executive officers. This right is only in abeyance ; not abro- 
gated. Then, when released from military rule, who, but her- 
self, can'appoint the Governor ? Whilst under military rule, 
who has any power to appoint the civil officers of the State ? 
No power which the States granted to the Union, invests it, or 
either of its co-ordinate departments, with any actual authority, 
or the semblance of any, to appoint a Governor.* The State is 
ascertained, hy force of arms, to be delinquent to a loyal organi- 
zation at home, and the practical domestic organization is for- 
feited, as far as it was formed whilst the State was in the delin- 
quency. So much of the organization as existed before the 
war, is only suspended. By the failure to maintain a loyal do- 
mestic organization, the State was thrown out of its practical 
relation to the government of the Union. The frame of the 
State's organization is still subsisting, as it existed before the 
war. That fourth section of th-e first article of the Constitu- 
tion, sheds all the light needed to show how the State shall be 
restored to its rights in the Union. It prescribes that each 
State may appoint the times, places and manner of holding 
elections for senators and representatives, hut the Congress may 
at any time, hy law, Tnahe or alter such regulations, except as to 
the places of choosing senators.f The present is just exactly 

*This absence of power in the President to appoint a Governor of a 

State, is one of the chief excellences of the Anglo-American system, 
and most valuably distinguishes it from the conK.titutional mon- 
archies in the old world. This did not escape the 'observation of the 
enWghiiined DctocqucvUlG, who in his "Democi?icy in America," 
says: " In the exercise of the executive power, the Presidentof tlie 
United States, is constantly subject to a jealous scrutiny. He may 
make, but he cannot conclude, a treaty ; "he may designate, but he 
cannot apjiolnf, a public ojpccr. The King of France is absolute" 
(wliereas the President is merely the chief agent) " in the sphere 
of the executive power." 

t Tlie writer has to-day, (14th Sept., lS(>j,) for the first time, ex- 
amined a debate in Congress, which occurred on 21st Aug., 1789, on 
an amendment, at tiiat time i)r()posed by Mr. J3urke," of S.' C. 
to be made to the Constitution of the United ^States, in regard to this 
power of Congress given that body, by iv. Sec, of i. Article. The 
proposed amendment was to theetlectof restricting that power, and 
it was urged by the advocates of iho amendment, that the States 
should have exclusive auttiority to regulate their own elections. It 
was insisted on by Mr. Smith, of Soutli Carolina, that tlie amend- 
ment oflered by his colleague, w«Hdd not prevent any exercise of the 
power as given by the fourth section, in any case of a State's neglect 

7 



44 

a conjuncture in which the Congreas may appropriately exer- 
cise the power. The State has failed, in forfeiting its right by 
its delinquency, to elect the proper officers to administer its 
government. Now, then, if the government of the Union is 
desirous that the State shall be restored, let that government 
indicate how the people of the State shall be purged of the im- 
purity of secession, and be restored to the loyal relation of 
practical activity in the Union. To do that, the Congress may 
prescribe by law the times for choosing its senators and repre- 
sentatives. This, however, the State cannot do, until that gov- 
ernment shall have set a time for making those elections ; for, 
until that is done, the State cannot elect a Legislature, by whom 
the constitution requires those senators shall be chosen. As 
soon as the State is advised that the two Senators may be sent 
up and admitted to the seats, the State can and will proceed to 
elect the Legislature, and this election will be made according 
to the laws of the State, except so far only as the people of 
the State have incurred any disabilities by reason of its recent 
delinquency. The disability of the State, as a corporate body, 
will have been removed by the enabling act authorizing the 
State to renew its representation in the Congress. Or, the Con- 
gress not being in session, the President might, as Commander- 
in-Chief, order the election. Thisistheaptest modeof change 
from the military to the civil rule.* The disability of the in- 



or refusal to make provision for the Congressional election. Mr. 
Goodhue regarded the power given by the constitution to the Con- 
gress to alter or malce the regulations, at any time, by law, as being 
necessary to the existence of the Federal Government. Mr. Madison 
" was willing to make every amendment that Avas required by the 
States, whieli did not tend to destroy the principles and efficiency of 
the constitution. He conceived that the proposed amendment" 
(which only sought to restrict the power of Congress) " would have 
that tendency; and he was, therefore, opposed to the a^nendment.''^ 
Yet, now, it is claimed that the President of the United States, in 
his capacity of the chief executive civil magistrate of the United 
States, may so far neglect that iv. Sec, I. Article, as to exercise the 
authority, so, by cotemporaneous interpretation, ascertained to be 
confided exclusively to the Congress ! Fatal neglect it will be if per- 
sisted in. 

* The observations in this expositive note, are important to be con- 
sidered, as showing that this step, as every other, of the plan, ia 
founded on express provisions of the Constitution United States. 
The President is Commander-in-Chief of the Army and Navy of tha 
United Slates, by Art. ii,, Sec. ii,, Clause i. E-ach State in, or in- 



45 

dividual citizens will remain to bo adjusted. The question re- 
curs : Who can assign the qualifications of the State's elec- 
tors, or derogate from the State's assignment of capac^ity to any 
citizen to be elected ? How many and which that were incul- 
pated, by common fame or notorious acts, in the State's delin- 
quency, are to be disqualified, and by what authority ? 

There is one point in those important practical questions, 
about which, it would seem, there can be no dispute. It is 
that no one shall exercise the right of suffrage or fill any office, 
unless and until he take the oath of federal allegiance. This 
is a sine qua non. Every man intending to continue to reside 
in any State, ought to be willing to do that in good faith. Can 
that government require of the individual citizens anything 
beyond that, to qualify them to be electors or to be capable of 
being elected ? 

When the State shall have been authorized to renew the 
election of representatives and senators to the Congress, all else 
that is requisite to restore the State to the practical working 
in the federal scheme, will follow as natural consequences. 
That authority would imply the duty of the State to proceed 
at once to elect a Legislature, and a Governor, and the Judges 
— a Legislature, because that body is charged with the election 
of Senators to the Congress — and a Governor and the Judges, 
because the executive and judicial functions are a part of the 
State's organization. The authority to renew her representa- 
tion in the Congress, would also imply amnesty or pardon to 



tending to be in, practical co-operation in support of the supremo 
federal authority, is entitled to " the republican form," as pointed 
out in the preface. Art. iv., Sec. ]v. By Art. ir., Sec. iii., the 
President is charged with the high function of "taking care that 
the laws be faithfully executed." The enforcement of the republi- 
can form, during the recess of the Congress, is thus clcarl,y devolved 
on the President, but he sliould take care tliat every step ho tal^es, 
is within the autliority of the laws of which the constitution is the 
chief. There is no provision of any law, organic or ordinary, wliieli 
gives or implies authority to him to appoint a civil (Jovernor of a 
State, when the civil government thereof lias been suspeudiHl by a 
rebellion or interrupted otlierwise, and is under milita)'y rule Yet, 
he has authority, and it is his duly, to take care that the State bo 
promptly relievetlof the military rule that has sui)ervencd, and this 
he can do in therocossof tlieCongi'e^^, only by fixing tJietimcsand 
|)laces by military orders for electing the civil i^llicers of wbojn (h< 
Governor is the chief in our re]iublic;).n forms. 



46 

the State ; but that would not convey a pardon to any of the 
citizens, in their individual relation, who compose the State. 
Whatever may be the punishment for any of them, held in re- 
serve, would not be hindered by the execution of this plan for 
restoring the State. This plan carricS; as one of its characteris- 
tics, a deference to the judicial power of the Federal Govern- 
ment, which, it may be demonstrated, must first ascertain 
whether «n?/ ci^/zen is an "o^/ewcZe?-," before any federal legis- 
lative or executive authority may lawfully interpose a pardon 
in his behalf. The judiciary is co-ordinate. The court has 
independent and exclusive, but not conclusive, cognizance of 
the case when it has arisen under the laws in force. The Con- 
gress has power to repeal a law, but is powerless to snatch the 
accused from a regular trial according to law. Nor can the 
President prevent the trial. Should the Congress attempt to 
authorize him to do so, it would be legislative usurpation. The 
accused, when convicted, can be pardoned by the President. 
The decision of the Supreme Court in the case of the United 
States vs. Wilson, 7 Cranch, is not at all inconsistent with the 
view here taken. This view is sustained by the tenor of Sec- 
retary Seward's instructions to Mr. Dayton, Minister to France, 
to the effect that the President's action (in the given case, as 
in any other) can be overruled by the judicial authority, even 
though that action be assented to by the Congress or by any 
mode or extent of the popular concurrence. And it should be 
so. " The judicial power," as an eminent writer remarks, 
" is the only sure criterion of the goodness of a government." 
The Congress, or, it may be as clearly, the President of the 
United States, might issue an amnesty to the State — the State 
not being amenable to the judicial authority, or capable of a 
criminal offence. This cjucstion and the like of it, are avoid- 
ed by this plan for restoring the State, (at least until after the 
State shall have been restored,) simply by authorizing' her to 
elect her representatives to the Congress, and by which alone 
the regular action of the State can and would be superinduced 
as a natural consequence. Nor would the execution of this 
plan at all interfere with the purposes of the General Govern- 
ment with respect to the free people of color, whatever' those 




purposes may be consistently witli the received doctrine that 
the regulation of suffrage belongs to the State. 

The only thing now remaining to be suggested to show that 
this plan is practicable at all points, and would be eminently 
practical, is to indicate by what authority the State would pro- 
ceed, by the qualified voters, to elect the members of the Gen- 
eral Assembly — that is, delegates and senators to compose the 
State Legislature. This, it seems to me, is also quite plain, if 
it be -necessary. The State is now under military rule. The 
President of the United States is the Commander-in-Chief. 
Let him, as such, order his subordinates in command of the 
forces in this State, to appoint a time for the election of the 
State Legislature and other officers, and direct that after the 
election the civil power of the State shall be in action, and 
that the military be withdrawn, so far as its presence would 
hinder any regular exercise of any civil office. So, in each 
State. 

The object of more lasting benefit than to serve the exist- 
ing exigency, important as this is, is to bring back the public 
councils to look into the constitution for remedies to correct 
irregularities in our system of political freedom. If the cor- 
rection of a departure from the system, as this system is 
framed by written constitutions, may be found outside of the 
constitution, and though inconsistent with its principles, may 
be applied by tfte men in authority, how and why shall tkey 
be held culpable who by attempted secession deflected the 
system from the regular working ? If the opposers of seces- 
sion, (of whom the author of these fugitive pages was one,) 
may look for and find a remedy which does not turn on the 
provisions of the constitution, for any supposed or real griev- 
ance, what right have they to convplain, even, that they who 
threw the system off its hinges and out of the harness, had 
resorted to acts of secession that are outside of the constitu- 
tion ? I ; it that some of the States must, and others may not, 
respect the constitution and^ be governed by it ? The idea 
that one wrong may be done to correct another, isinot any 
more sanctioned by our laws, than it is sound in morals. 
Why may they, in authority who do not obey thc'lawS; exact 



48 

allegiance of those who are not in authority? Illustrious 
lesson of liberty this is, that " in the exercise of his powers 
of government, the President of the United States, is no more 
than a magistrate ; and the laws, whether those that existed be- 
fore him, or those to which, by his assent, he has given being, 
must direct his conduct, and bind him equally with his fellow- 
citizens. It is the government, as it is defined by written con- 
stitutions, which all, in and out of authority, are sworn to 
support. As De Lolme expresses it, " there may be an im- 
mense distance between !the making of the laws and the 
observing of them." The government is one thing — its ad- 
ministration is another, and may be very different. The oath 
to support the constitution, is an oath to resist tyranny and to 
rebel against persistent usurpations and oppression. It is not 
any administration of government, to which the public coun- 
cils may deflect its powers from the line the government pre- 
scribes, that the citizens in private life are bound to obey and 
cherish. The administration derives its honor from its duti- 
ful observance of the government, and from that orbit alone 
can it shed the beneficence of the government. If the gov- 
ernment is found to be less perfect than it should be, let its 
defects be supplied only by a resort to the power of the people 
that created and established it. If the administration is 
vicious, that is, in departures from its appropriate sphere, let 
it be reclaimed by fair speech, and the power of argument, 
and the elective suffrage, and the right of the people to in- 
struct the representatives whom they elected. The sentiment 
of the poet applies as well to the administration, as to the 
man who owes allegiance to the government : 

'• On him who lives as wisdom would require, 
As duty woos, and as the virtues claim, 
Time, if it robs the poet of his lyre, 
Bestows a bliss beyond the wealth of fame." 

The constitution is the gospel of that wisdom ; and it is the 
virtue that drives them who administer it, to the duty of ob- 
serving it, which bestows the honor of enduring value. 



49 



Peteesburq, Va., June 5, 1865. 

Repeated in other words, with a few other thoughts. 

If tlie United States authorities are in earnest and sincero 
in tlieir avowed purpose of re-establishing the legal rule of a 
regular civil government in this State, the plan is conspicu- 
ous in the provisions of the constitution of the United States. 
If it is the purpose, however, of that government to experi- 
ment longer, as General Sherman expresses it, in the machinery 
bj which its power is to be displayed in the South, this pur- 
pose is equally conspicuous, and so much so, in the hindran- 
ces which are in the tide of experiment, that it will be diffi- 
cult for the authorities to discover a better mode than that 
they are practising. The military authorities, in this city 
and elsewhere, as far as I have observed, are exempt from 
this animadversion. These are doing the best for us their 
orders will allow, and the men in civil office seem to have 
right disposition, but they do not adopt the right loay. 

Let the authorities at Washington consult the situation, and 
be governed by the constitution, and the right plan is on the 
surface ; and if adopted, will bring relief to us, and to them- 
selves the assurance of that prosperity which the agricultural 
and other industrial pursuits prosecuted with all practicable 
vigor, alone can reproduce. One act will do the work. With- 
out that act first accomplished, the pending troubles will drag 
their slow length along, until, it is to be feared, great as they 
are, still deeper and more difficult will be engendered. Whilst 
there is danger that delay to bring in permanent government, 
may breed troubles of one sort or another, yet the mere ele- 
ment of time, within the compass of a year or two, is of incon- 
siderable value. The State can get on tolerably under mili- 
tary rule or a forced provisional government. And let it be 
perceived that this plan applies to every one of the late so- 
called Confederate States. That requisite act first to be done 
to accomplish the desirable object of restoring the State to 
the former practical relations in the federal union, with least 
possible delay, is simply that the federal authorities shall au- 
thorize the State to renew her representation in the Congress. 



50 

The State is now without that representation, and she has no 
legislature which alone can choose and send up two Senators 
to that Congress. ^ (See Art. I., Sec. III., cl. 1 Con. U. S.) 
The authority to the State to do that, would imply that the 
State shall proceed to elect a Legislature, There is, in the 
situation, as it is, no time appointed for the election of the 
representatives of the State to the^! Congress. As the State 
has failed to prescribe a time, the Congress has the authority 
to do it. That authority is conferred by Art. I., Sec. IV., cl. 
1, Con. U. S. And here the only question of any possible 
dif&culty arises. It is, hoio is the time for electing a Legislature 
to he appointed, and hy toliom ? The answer here, too, is on 
the surface, but it extends- iself to and through all the depths 
of the subject. Excluding the Peirpoint government, (which 
I would advise all to help on to success, as provisional,) the 
State is under the military rule. The President is commander- 
in-chief. Then, let him issue an order to the proper military 
authority within and throughout the State, to fix a time for 
the election of Delecrates and Senators to the General Assem- 
bly, according to the suffrage (with the qualification of new 
allegiance) as it was regulated by the constitution before the 
war. That would prevent the delay for the Congress to meet. 
The constitution of Virginia, although its operation was prac- 
tically suspended by " the Ordnance of Secession," has not 
been disannulled ; but, on the contrary, it is in the theoretical 
structure of the federal union, still potential, that is, existing 
still in the capabilities of a practical exercise. Its pro-slavery 
provisions are, by the result of the war, deadened; and by 
the universal acquiescence of the owners of the hitherto law- 
ful property, those provisions are utterly annihilated. The 
only qualification on the right of sufiYage that needs to be 
added, is the just requirement that the citizens, before voting, 
shall have taken the prescribed oath of allegiance. That 
super-addition of qualification to entitle the citizen to suffrage, 
is just, from the fact that the State, as an organized society, 
attempted to secede and is baffled. The individual citizens 
are found in that delinquency or dis(|ualification. They, noAV, 
as individuals, desire the benefit of a renewal of represen- 



51 

tation, and they should by oath, reclothe themselves, each for 
himself, with the former allegiance, or submit to a denial of 
the desired benefit. The general government has no authori- 
ty to require aay other test oath. 

Whatever else is done, and however long it may take to do 
all else that may need to be done, the State's representation 
in the Congress must be renewed before the State can be re- 
stored. When that, which is most important and indispensa- 
ble, is done, all else will flow on by natural consequences. 
The State so officered, would alter — would at once be constrained 
to conform — the municipal law, to suit the changed relations 
of the colored people. If desirable, at any time after the 
State is restored, and no matter why desired, to have a con- 
vention to change the constitution, in an}'- respect, or however 
soon thereafter, it could be done with more deliberatic n, and 
be better done, in all respects, after, than before, the event of 
the practical restoration. Nor would the punishment of indi- 
viduals^ whatever that may be, in reserve for any, be.embar- 
rassed by the execution of this plan. The authority of the 
State as an organized society, would imply an amnesty to it, 
as such, but would not impart any pardon to anj^ of the mem- 
bers _of that society. It is competent to the federal Cono-ress 
and executive, the latter acting as a component part of the 
federal Legislature, to issue that authority necessarily imply- 
ing amnesty or pardon to the State, because the State has tbe 
reserved right of " the republican form" which the General 
Government is bound by the constitution (Art. lY., Sec IV.,) 
to guarantee to every State in this Union. That guarantee 
cannot be made good to any State, under the federative sys- 
tem, as it was, or as, it is supposed, it is intended to be, unless 
and until the State is authorized to renew the representation 
in the Congress, which tlie state has lost the opportunity to 
do at present, by the failure to appoint a time for the elections. 
The State needs not, nor indeed can, be held subject to any 
punishment that may be in reserve for offenders ; because the 
constitution of the union provides no punishment for the State, 
nor any fundamental forfeiture. Nor does principle prescribe 
any. It as otherwise with the individuals of the organized 
8 



52 



society, called a State (and, by-tlie-by, a State without rights^ 
would be a nondescript). The individual members are liable to 
punishment, as offenders ; but whether any are offenders in a 
criminal sense, and whether tliat is given in charge to the 
judicial power, which is a co-ordinate department, to ascer- 
tain, exclusively of any interference by the federal Legisla- 
ture and Executive, until after judicial coviction, are ques- 
tions of grave import involving elements of controversy 
enough to be postponed, until they must be decided. The 
other question of the right and (it seems to me) the only way 
of restoring the State, is upon us and craves to be first settled. 
" Sufficient unto the day is the evil thereof;" and it is an evil, 
in this instance, that may become inveterate, if the cure here- 
in suggested^ be neglected. 

How inconsiderate, not to say how immoral, it is, that pub- 
lications shall be spread over the popular mind that it is in- 
different how the States are got back into the Union, cannot 
fail to be seen in the light of an illustratien that will be offered 
in conclusion of this article to enforce the right way. It is 
agreed by the men in the federal authority that these States 
are not to be held as conquered provinces, but are to be re- 
charged with federal duty and replenished with the federal 
privileges. That is just the status of a territorial people in 
the act of forming their institutions for admission into the 
Union. If it is not material, but indifferent, whether the 
federal government shall see to it that the new State shall 
come in ia no other than the republican form, then it matters 
not what means are used to restore these States to member- 
ship in the Union. If the constitution be not observed in 
this transaction, the historian who shall record the events by 
'which our federal system will have been brought to its end, 
will devote his first chapter to the unconstitutional restora- 
tion of the rebel States in 1865. 



Perersbukg, June 17th, 1865. 
TJie Wheeling and Alexandria Constitutions. 
As the records show, the case of Virginia, is thus in the 
outline of the projected partition into two States: On the 11th 



53 

qF June, 1861, a convention of delegates from thirty-nine 
counties remaining loyal to the federal Union,' was assembled 
in Wheelinc". On the 19th, an ordinance was passed " for the 
reorganizatioa of the State government," to extend over the 
whole State. On the 9th of August, an ordinance was passed 
declaring the ordinance of secession, passed on the 17th of 
April, at Richmond, to have been '^' v/ithout the authority of 
the people of Virginia," in the face of the fact that the whole 
State was represented in the Richmond convention. On the 
2'Oth of August, the Wheeling convention ordained that a 
new State should be formed including the thirty-nine counties, 
to be called "the State of Kanawha." On the same day, 20th 
of August, 1861, they passed another ordinance providing 
for the election of members to the Congress, from the whole 
State of Virginia. Oa the 13th of May, 1862, the legislature 
at Wheeling passed an act professing to give the consent of 
" the Lesfislature of Viro;inia " to the formation of the new 
State of West Virginia to comprise forty-eight of the counties 
of the State of Virginia ; and this new State was admitted 
into the Union by the Congress. On the 13th of Febauary, 
1864:, a convention of Delegates from half dozen counties 
about Alexandria, assembled in that city and issued a consti- 
tution, as if it were an edict by a prince to his subjects, and 
now claim that it shall be extended over this part of the State ; 
and the President of the United States promises the federal 
army, if necessary, to enforce it. If that was right, a third, 
without delegated authority, may assume to act for the whole, 
and a small portion of that third' can subject the other two 
thirds to their rule. The Congress refused to admit, that is, 
did not admit, to seats the men who were elected under the 
Alexandria constitution, to serve as Senators from that frac- 
tion of the third of the old State. Why were they refused 
geats in the United States Senate? — 'Nor is that all. It is 
claimed by the authorities at Washington, that the Virginia 
Ordinance of Secession which incited to the formation of the 
Wheeling government, (and most properly Avas it formed, if 
it had been provisional only during the war,) did not carry 
the whole State, or any part of it, out of the Union. This is 



54 

true, and is not now questioned by argument or arms. With 
this just demand enforced, to wit, that the whole State was 
all the time of the war, still in the Union, how can it be 
maintained by the federal authority that the new State was 
constitutionally carved out of the old State, without the con- 
sent of a Legislature representing the whole State ? The 
provision of the constitution of the United States, is : Art. 
IV., Sec. III., cl. I. " New States may be admitted by the 
Congress into this Union ; but no new Siate shall be formed 
or erected within the jurisdiction of any other State ; nor any 
State be formed by the junction of two or more States, or 
parts of States, without the consent of the Legislatures of the 
States concerned, as well as of the Congress." 

Such being the facts constituting the situation of Virginia, 
and it being also a fact that the United States authorities do 
not intend to impose an immorality on the citizens in East Vir- 
ginia, the question arises, how can any citizen take the oath to 
support both the Constitution of the United States, and the 
Wheeling arrangement? I am a sincere and lo^^al inquirer 
for the truth. No man is a warmer admirer of the Federal 
Union, from affection for its principles and veneration for its 
felicitous provisions. Having most cheerfully taken the oath 
to support the Constitutiou of the United States, I am anxious 
to take the oath to the government of the State, as it ought, 
instead of as it is sought, to be established. The oue constitu- 
tion is in conflict with the doctriDos on which the other is 
founded. The great and most admirable principle that the 
government of the United States derives its just powers from 
the consent of the governed, is rejected by the exaction of the 
oath to support the Alexandria Constitution, to which at least, 
seven-tenths of the voters to become qualified as such by the 
just exaction of a new oath of allegiance to the Federal Gov- 
ernment, had not given, nor had any opportunity to give, their 
consent before it was extended over them. Nor was it the 
fault of very many of these citizens that they never had an 
opportunity to vote to ratify or reject it. The opportunity 
was withheld from most of us by causes we could not control, 
3,nd one of which only needs to be mentioned in support of 



55 



tTi#argument against the permanent expansion of theautliori- 
ty of the Alexandria Constitution. lb was intended by its fra- 
mers, that the people of the larger part of the State repre- 
sented in the General Assembly, at Eichmond, should not 
have any voice in determining its acceptability. It was pro- 
perly intended to protect, during the war, the people of that 
portion of the State, whose delegates in convention framed 
it ; and it had done its full legitimate service, when the war 
was ended. Or, if now it is meant that it shall survive, and 
that its authority shall be spread, as a mantle, over this larger 
part of the State, it can only be rightfully done, consistently 
with our system, by submitting the question of its ratification 
or rejection, to the vote of the whole State. The enlarge- 
ment of suffrage, by removing some of the disqualifications 
the Alexandria constitution prescribes, would not remove the 
radical objections to that constitution. That Legitlature's 
removal of restriction on the right of suffrage, would be a 
temporary expedient evincing a good disposition, but showing 
only a very thin salve on a deep wound.* No less could be 



*The writer will now add in view of the events transpired since 
the foregoing was written, that it is no excuse or relief for it to be 
shown, as now it is, that the Legislature just adjourned, this 23d of 
June, has acted wisely by enlarging suftiage. Without that, their 
scheme was inert and could not be put into operation at all, with 
any semblance of fairness. 

The citizen in this East part of the State, it seems to me, and I 
greatly regret it, who shall take both oaths, must of necessity, 
which is inherent and unavoidable, perpetrate a perjury. The pow- 
ers incorporated in the Wheeling and Alexandria constitution, are 
prescribed without legislative agents deputed by us to prescribe 
them ; and after the dictatorial prescription as to us, our consent, or 
submission rather, is exacted by an oath to be governed by it. If 
this government of the State is intended to be only provisional, con- 
ducted by a Governor ai^pointed by the President of the United 
States, as to seven-tenths of the people who may hereafter be quali- 
fied to vote, in any general election, by taking the oath of allegiance 
to the government of the United States, still, I would say how un- 
like it is, and repugnant, to the Constitution of the United States, 
which provides for the election of the chief magistrate, by popular 
suffrage, or in a mode considered equivalent, to wit: by electors 
chosen Vy the people. 

So, manj' a King has acted well, at times, for the s^'-vecf people 
ruled witliout their consent. It is the representative system, as ac- 
credited by the Constitution of the United States, and by it reserved 
to the States, in and by which this writer seeks to have this State 
re-established. ' 

By this inconsistent oath, by this superaddition of oaths, this State 
is brought to a balk— a dead lock— so Hint a moral and intelligent 



56 

done, without cofessing tliat the design was to carry on The 
government, without giving these seven-tenths of tlie State 
any voice in administering it, as they had none in originating 
or organizing it. 

Let this topic be presented in another aspect ; or if this be 
so like the other aspects in which it has already been a little 
looked into, let oiher language be used to exhibit it in a some- 
what different light, lEovy can the oath be taken by the citi- 
zens in East Virginia, to support the "restored " government ? 
Is it not true that the State is not "restored," in any sense ? 
If that word in the oath intends to represent that the govern- 
ment of the State is now as it was before the war, it is a mis- 
take that is obvious in the fact that that government is claim- 
ed to be suppressed, by those who have enacted another in its 
stead. If that word intends to convey the idea that the former 
government, which the Washington authorities admit is only 
under a temporary suspension, is revived, this is equally a mis- 
take — and a mistake obvious in the fact that it is not bsing put 
in motion in any of its functions, but the Alexandria Crovern- 



people, cannot get license under the revenue laws of the State, to 
practice law, or medicine, or carry on any business that requires a 
license ; just as is the case, and to a greater extent than is tlie case, 
in North Carolina, (and in other States,) where, for instance, Robert 
P. Dick, Esq., has declined to qualify as United States District 
Judge. The policy I am opposing, in part, is a needless multiplica- 
tion of oaths. There it is tlie case that by the act of Congress, July 
2, 1862, an oath, now needless, excludes from public service a sincere 
Unionist ; whilst in this State, an inconsistent oath drives loyal 
citizens from public service and private business. 

Why, if "West Virginia " is lawfully a State, should the citizens 
of East Virginia be required to swear to support its government? 
Why not as well require us to swear to support the government of 
Kentucky, or that of any other State? If ''West v^irginia " is not 
lawfully a State, ouglit anybody to be required to swear to support 
its government ? 

The constitution of the United States, as has been argued herein, 
does not allow tlie division of a State by legislative consent. That 
consent should be given, if at all, only by a convention of the peo- 
ple of the whole State, and then be of no avail without the sanction 
of the Congress. Suppose the constitution does not disallow, as 
an incipient step leading to the division of a State, or consummat- 
ing it, that one constitution may be substituted for another, by the 
individual consent of thequalitied voters of the State, still I Avould 
insist that it ought not to be unfairly done, and least of all 
ought it to be so done as to bring on the people of any portion of 
the State a moral obligation to uphold an unconstitutional transac- 
tion. 



57 



ment is being driven, as a wedge, between the people of the 
State and that former government of theirs. If. that word 
" restored " is used to signify that the State is re-placed in its 
former practical relations in the Union, such is not the case. 
The Senators elected by the Alexandria Legislature, have not 
been admitted to the seats, though they applied with their 
credentials. Whatever was the cause of the failure to admit 
them, want of time or what not, the fact is that they have not 
been admitted, though they may expect to be. This expecta- 
tion may be disappointed again, as it was before, for want of 
time, or some other like frivolous excuse alleged under cover 
of some other cause, or for some other excuse more serious 
than any that has been alleged as the reason for the failure to 
admit them on the former occasion. Any how, in the fact that 
the State is not in the Union yet, in the furniture of a revived 
civil authority, the government of the State is not restored. 
And, moreover, if the Senators had been admitted from the 
State which is claimed by the prescribed oath to have been 
"restored," even if it is "restored" in any sense not here ad- 
verted to, if there is any such sense, or if they shall hereafter 
be admitted, they will at most only be Senators sent up by a 
very small part of the State, and not by a Legislature elected 
by the whole State, as the Constitution of the United States, 
requires they should be. 

Apart from all that, as much as it is, the oath requires the 
taker of it (properly) to support the Constitution of the United 
States, and (improperly) the "restored" government of Vir- 
ginia. The " restored " government involves the erection of 
" West Yirginia," within the old limits of Virginia. The Con- 
stitution of the United States provides (as has been conceded 
for the sake of the argument, only) that such a formation of a 
State shall not be accomplished without the consent of the 
Legislature of Virginia. That consent has not been regularly 
given. In strictness, the regular Legislature could not give such 
consent. It ceuld he consented to only, if at all, hy a Convention. 
The Constitution does not allow such an erection of a neiu State. It 
is the formation of a State by the junctionof two or more (or parts 
of) States, to which the Constitution requires the consent of the 



58 

Legislature thereof. It is j^teremptory that "no new State shall he 
formed or erected within the jurisdiction of any other State ; &c. 
The case of Maine is not a precedent against that strict inter- 
pretation — indeed, the erection of Maine into a new State is 
not an example under any construction — for this, if nothing 
else, that Maine was not a pan of the State of Massachusetts, 
"but was only connected with that State, as a province, from 
1639 to 1820 ; at which last date Maine was admitted into the 
Union. It is true that Massachusetts did give consent to the 
erection of Maine into a new State. How that consent was 
given, whether by the legislature or by a convention, no his- 
tory that is accessible, tells."^ New Hampshire was in the same 
case as Maine was, that is, under the jurisdiction of Massa- 
chusetts, and shared her fortunes, until the period of the Revo- 
lution in 1776. It does not appear that Massachusetts gave 
any consent to the erection of New Hampshire into a State. 
Nor is it material how Massachusetts gave her consent con- 
cerning Maine. All the early history of this province shows 
that its territory was never considered as part and parcel of 
Massachusetts, as were West and East Virginia linked into 
one State in territory. No doubt, either, is there any room 
for, that that consent of Massachusetts, respecting Maine, was 
fairly given, and not pinched and squeezed out, as is our con- 
sent, without opportunity to give or withhold it, in the case of 
the partition of Virginia. The Wheeling and Alexandria 



* Since the text was written, I find, in 35th vol. Annals of Con- 
gress, 13th Jan'y, 1820, that representative jRoSer;".? referred to. the ac- 
tion of Maine, in seeking admiBsion as a State, as having been " clidy 
authorized by act of the Legislature of Massachusetts." If that pre- 
cedent were entitled to respect, but is not, as it was without consti- 
tutional warrant, and if Maine be regarded as thus being a part of 
Massachusetts, against her troubled story which tells she was not, 
still the case of Maine would be a precedent inapjilicabie to the pro- 
I>osed partition of Virginia. It would be inapplicable in this, that 
it was by "act of the Legislature of West Virginia," so called, and 
pot by act of the Legislature of Virginia, (as in tlie other case of 
Massachusetts,) that the erection of West Virginia was pretended to 
be authorized. The cases would be parallel, however both would be 
unauthorized by the coiistitution, if in that case Massachusetts had 
not been consulted, as Virginia was not, and Maine by her legisla- 
ture had given the consent, as West Virginia did ; or, if the Legis- 
lature of Virginia had given the consent. But there is no parallel- 
ism, and therefore uo precedent. The case being altered altera the 
case. 



59 

Conventions, if the representatives m both had been in one, 
excluded two-thirds of the whole State, whose consent it is 
claimed is covered and conveyed by the action of those partial 
conventions, and sought to be enforced by an oath which dis- 
franchises, for office, or for license in any taxable avocation, 
all in East Virginia who will not take it. Though the taking 
of it by the people may be regarded as an evidence of their 
loyalty, and will elicit a compliment for them from the men in 
the official circle, the writer had hoped it was a compliment 
this people would show they had too much spirit and under- 
standing by compliance with it, to deserve. The effect of this 
oath, whatever was its design, is to secure the consent of the 
individual citizens in the East, to the formation of West Vir- 
ginia. It is npt by the individual citizens, even if they were to 
act in a grand mass meeting, and with no dissenting voice, 
that the constitutionally required consent can be given. It is 
the consent of the Legislature of the State of old Virginia, as 
a whole State, that is indispensable to validity, according to 
the Constitution of the United Stales, (in this view of it,) and 
that consent cannot be substituted or justified by any consent 
in any other form, to make it lawfully effective for the erec- 
tion of a new State within the limits of the old State. This 
view for the sake of presenting the argument, is taken under 
the concession that the constitution allows, in the case, the 
consent of the legislature of the whole State as sulncient, 
which however it does not allow. If the consent by the indi- 
vidual citizens, by oath or otherwise, had been asked or re- 
quired before the erection of the new State, it might, under 
that concession, wear the air of plausibility. But the erec- 
tion of West Virginia, is not even that much in deference to 
the spirit of the constitution, even under that erroneous con- 
struction ; much less does it conform to the representative 
principle of the consent of the governed. The effect of the 
oath is to secure the individual consent of the citizens, after 
the fact. It is that, instead of the consent of the legislature, 
he/ore the fact. The parts of the oath,, as I apprehend, do not 
consist with one another. But I have seen, and much fear 
shall often see, not owing to any lack of honesty, but toa 
9 



60 

superabundance of heedlessness, on the part of the people, 
how impotent law and logic are, when they come in collision 
with the exercise of political privilege. Still 1 would warn 
my country th;it until it shall be otherwise — until the consti- 
tution is respected as the limit of authority, we shall never 
again be safe in freedom's rights, and our noble experiment 
of representative government will inevitably fail, and in 
scenes more revolting, perhaps, than those exhibited in the 
late war, the scandal of the age. 

Some attempt' has been made, (Oct. 20th,) in several quar- 
ters, to induce the belief that the oaths of amnesty under the 
presidential proclamations, may be likened to that oath to 
support and defend the " restored " government of Virginia. 
There is not the least resemblance. The former oaths are 
prescribed by federal power, and the latter by State power. 
A no less reckless attempt has been made to liken the former 
oaths, in point of authority to require them, to the oath pre- 
scribed by the act of the Congress of July 2, 1862. directing 
a test other than the oath to support the constitution of the 
United States. Neither is there any resemblance here. The 
former relate to the private citizens, alike with *he public 
men, or other ofBcials, vfhilst in the private station ; whereas 
the latter relates only to those elected by the people, or ap- 
pointed to office, to be taken (else a denial of the office en- 
sues) upon their induction into the offices to which they have 
been chosen by popular suffrage or otherwise appointed to be 
the representative men or ministerial agents. The amnesty 
oaths were and are to put to the test, the ^^^-os-pective loyalty of 
all the members of t^e society, or State, Just emerged from a 
rebellion. The. test oath of induction into office, has no such 
purpose to serve, in any sense. It relates to the past conduct 
of them who are to be subjected to it. It proposes to subject 
to its ordeal those only who have been appointed to serve 
that society which has already been purged and justified by 
the amnesty oaths. These (amnesty) oaths were required of men 
who had striven to become foreigners. These (amnesty) 
oaths were prescribed in virtue of the national sovereignty, 
just as in the nation's foreign relations, on the kindred subject, 



61 

tlio oath of allegiance is made necessary to naturalization. 
The State was not out of the Union and foreign, but in and 
delinquent. The test-oath of offiiGe does not deal with foreign 
subjects, but is altogether v/ithin the domestic polity and 
the circles of of&cial service the constitution circumscribes. 
To illustrate : The constitution determines how many Senators 
each State shall send up to the Congress, but it does not de- 
clare for what the Congress may " declare war " or " make a 
treaty of peace " with any foreign power. The act of am- 
nesty was one of grace, and the competent giver had the right 
to set the conditions. The test-oath of office is an act affect- 
ing reserved rights that are restricted, as alone they can be, 
just precisely as they are defined in the constitution adjusting 
them; and they cannot be either diminished or augmented, 
unless and uutil that constitution is altered. But say they 
who liken these oaths, and intimate or insist that the one is 
as unconstitutional as the others, " the swearer is sworn by 
the amnesty oath to abide the proclamation setting the ne- 
groes free, which violated the constitution." Now, it was not 
the proclamation, but it was the sword, that set them free. 
We who incur (if we will) this branch of tlie amnesty oaths, 
made the war, or accepted the wager of battle, of which the 
chief result is the negro's freedom.'^ We made a positive sur- 



*The Itxw and the morality of this whole subject of slavery, so far 
as it was the proximate cause of the war, and so far as its destruc- 
tion, as a property, is the effect of the defeat of the South in tiiat 
war, can be put in a nutshell, thus: T, the South, told him, the 
North, that his purpose was to take from me my hat, negro slavery. 
No, says he, 'tis not so, there is no purpose to touch (slavery) tlie 
hat on your head — it is yours. He say.s so to me three times and 
trives me a writing to that effect (which is in three votes in the 
House of llcpresetitatives). I am not satisfied with that threefold 
disavowal of design to take away irom me my hat. I approach him, 
when he is standing with folded anas, and ciiarge him with a hanli- 
ering alter my hat— lie proietts he r(>gards it as mine, to do with as 
I please. I hear him with incredulity, and take counsel of my fears 
that he does intend to take my hat from me. In the pride of my 
physical strength, and in th(^ strength of my suspicion, I rise up in 
his presence and challenge him to tisticuftsto beat him ofi'from ttiat 
design he had so often denied heever meditated. In the fight I am 
overcome, my strength being lot^^s than I had supposed. Surely, I 
will be bound in honor to acknowledge that I have lost all claim to 
the hat, forever, even though ho decline the victor's title to it, and 
let it lie by, where I lost it, as the negroes linger here where we lost 
them. 



62 

render of the ownership — a surrender of our constitutional 
right to it. We certainly assented to, if we did not seek, the 
issue of battle. Now, nothing is surer than that a man (or 
State) has a right to give up his rights. Our right was safe 
— we would insist it was not — we went to war to make it 
safe, Avhen we knew they who opposed us were seeking an 
opportunity to do what they had as often as three times 
confessed the constitution would not let them do. So unequal 
was the war that our resting our right of the ownership on 
that issue, was equivalent to a voluntary surrender. They to 
whom we thus surrendered that right, as it was under the 
laws from which we appealed to a trial of physical forces of 
known odds against us, now tell us, just exactly and exactly 
justly, that we should seal our verbal promise to abide the 
result, by a recorded oath which, if our assent to the issue had 
not been given, would be unconstitutional, but having been 
given, is made constitutional against us in virtue of that 
assent and consequent surrender of our right. The one oath 
is to support a government we had no voice in making ; the 
others or amnesty oaths are to support an efiect of the war 
the South would have. 

As Junius says, if there be a defect in the representation 
of the people, that power which alone is equal to the making 
of the laws, in this country, is not complete, and the acts of 
legislature, under that circumstance, are not the acts of a pure 
and entire legislature. I speak of the theory of the consti- 
tution ; and whatever difficulties or inconveniences may attend 
the practice, I am ready to maintain that as far as the fact 
deviates from the principle, so far the practice is vicious and 
corrupt, and ought to be relinquished by a prompt and ingen- 
uous return to the principle. 

The exclusion from ofl&ce and from suffrage, by the Alex- 
andria constitution, of all who were members of the General 
Assembly at Richmond, during the war, is retained, as if it 
was not as necessary for the people of this part of the State 
to have a State government during the war, to prutect us, as 
it was that the people of that part of the State which is now 
" West Virginia," should have been provided with a govern- 



6n 

meut duriug the war, to protect them. Indeed, there is no 
reason in the philosophy of the system, to justify the disfran- 
chisement of the members of the Confederate Congress or 
members of the State Legislature, Their action was but the 
logical and governmental sequence of the upheaving and 
overruling ordinance of secession passed by "sovereign" con^ 
ventions. Though secession was as unjustified by true con- 
struction, as it is unsustained by arms, individuals had no 
way of escape. The public opinion became a resistless tor- 
rent, and men of capacity were compelled by it to serve in 
the Confederate Congress. Such men, in such a conjuncture, 
were not to be expected to suppress the promptings of pri- 
vate ambition and public duty. It is but the often told story 
of ambition in all past ages. .It will be well if the men in au- 
thority, since hostilities have ceased, shall succeed in main- 
taining their authority without abusing it. Most of the men 
who served in that Congress, would now, under the prompt- 
ings of the same private ambition, devote their talents to the 
public duty of serving and advancing the popular opinion 
when turned back to its former channels. By the " sovereign " 
people, 

"in the rebellion, 
When what was not right, but what shall be, was law, 
Those men were chosen ; now, in better hour. 
Let what is right be that which should be done."" 

And, moreover, as to the members of the State Legislatures, 
it cannot justly, nor should it, be overlooked, by the powers 
that be, that, irrespectively and independently of the rebel- 
lion and the consequent war measures, the State needed and 
was entitled to a Legislature. Not a few of these members 
admired and would have shielded the federal Union. The 
voice of some of them, was still for peace. Some sought 
seats in the Legislature, (as some did in the Congress,) to 
escape the conscription into the army. Most of them looked 
only to the domestic affairs of the State. Many of them who 
looked beyond to the conduct of the war, were induced to seek 
the success of our arms, in order to secure a firmer footing, 
t.han defeat could afford, for favorable terms, whenever nego- 



64 

tiations for peace might fortunately intervene. If right that 
any, can it be that all, members of the State's Legislature 
during the war, shall be disqualified to vote or to be elected I 



and zvliat of the future ? 

; Petersburg, June 19th, 1855. 

"What a spectacle have the people of this great Federal 
Republic exhibited, as it is embraced in the period interme- 
diate between the 8th of January, 1861,* when the writer 
threw a prophetic glance springing from facts, into the issues 
of the late war, and this day as he looks upon the frightful 
horrors outstanding for the crowded pages of history ! It is 
suitable and salutary to make references to the past events 
constituting such a spectacle, when the retrospect is indulged 
to be a guide for the future, and the basis on which to super- 
induce and solidify reconciliation and concord. At the first 
date, the unexampled career of prosperity might have been 
maintained, in its gushing stream and sparkling spray, if the 
public councils of the country would have " sprinkled cool 
patience" upon the heat and flame of their distempers. Not 
so, it is said, in the sense that this war might have been pre- 
vented; but cnly deferred. It was not love or dislike of the 
Federal Union which brought on the war. It was neither 
kindness of philanthropy for the black slaves, nor avarice of 
their labor without wages, that made the war. JSTo such irre- 
pressible sympathy for any portion of the human family in 
distress, if such had been the situation of the blacks, has ever 
been known to imp^l the people of the North. They are too 
intelligent not to know that there was distress enough at 



"That is the date of a letter in the first eaition, which predicted 
the South's defeat in tlie war the writer was striving to avoid. It 
was not that he was a prophet, but only that lie toolv heed unto tlie 
common sense inculcated by that scripture that asks: "Or what 
king going to war against another Iving, sittetli not down first, and 
consulteth whether he be able with ten thousand to meet hiai who 
Cometh against him with twenty thousand?" 



65 

Lome to have absorbed all their teeming sources of charity ; 
and they are too christian to be ignorant that the Apostle 
Paul teaches that all men everywhere should learn to relieve 
all manner of destitution at home, before the benefactors 
should spread their benevolence abroad. And at the South 
it was too clearly seen how slave labor without wages, which 
vastly increased the natural indolence of the blacks, had long 
been making the South poor indeed, and laggard in the race 
of thrift, especially in the mechanic arts. No, it was not sla- 
very that was the cause of the war. And just as unques- ■*■ 
tionable it is that it was not love of the Union, in the one 
section, or dislike of it, in the other. In the South, it was 
the boast that in the earliest stages, her public men were 
foremost in constructing the best government the world ever 
saw. This was one of many strong links to attach the South 
to the Union — powerful to repress any upstarting dislike. At 
the North, it was seen and avowed that the Union was the 
strongest safeguard of the ownership of slaves, and kept off 
foreign interference. So manifestly was this so, that, in 1850, 
memorials were sent up to the Congress from the North, to 
the effect that on account of the slavery in the South, " some 
plan should be framed for the immediate and peaceful disso- 
lution of the American Union." Then, it was not a love or 
dislike of the Union, that engendered the distemper of the 
times, that produced, when it did, the terrific spectacle that 
has intervened between those periods. ■ Some other cause for 
the war, must be found in tne deep-vaulted reason of human 
conduct. It would be the Avorst of reproach, if such a spec- 
tacle had been produced without a cause in its reason suffi- 
cient, or to become sufficient only a little later. It were use- 
less to inquire further than has been already intimated, how 
it might have been postponed, perhaps the length of a gene- 
ration. It was to come, and it has been. The law of popula- 
tion produced it. It was ambition, with angry passions, that 
precipitated.it only a little time. The toiling millions of the 
" free " States and of the world, wanted the fertile fields and 
dense forests of the " slave " States, for tillage, as their treas- 
ure. The teeming toilers of the world who make tlieir bread 



66 

by " the sweat of the face," wanted elbow room. They must 
have it. 

In support of the correctness of this view, let the language 
of (now) Secretary W. H. Seward, the foremost statesman of 
this age, be cited, though it is less powerful than the evidence 
of natural causes. It was in the Chicago Convention he said : 
" There are the Southern States, with the finest territory on 
the face of the earth, peopled by four millions of blacks. 
That territory is wanted for the free white men of the North; 
and those blacks must be put out of the way." 

How benignant are the constraints resulting from the cause 
here assigned as the only sufficient one that in reason could 
liave existed to produce the war, to induce all in its endings 
and its effects, to be impressed with and show forth right tem- 
pers — they that come, to come with gentleness, and they that 
are come to, to receive with kindness ! God gave His earth 
to the human race to occupy and cultivate. AYhy should it 
not drive away from all the spirit of reproach that lingers in 
the other erroneously alleged causes of the war ? 

The writer craves, in this retrospect, at the risk of being 
considered egotistical, to bring up the fact that during two 
years he did earnestly desire that the attempted secession, 
though without cause and all wrong at first, might be success- 
ful. It was whilst he thought freedom had failed and was 
trodden under foot in the States that remained satisfied in the 
Union. It did indeed look as if every barrier would be 
broken down, as many were, by the incursions of usurped 
power ; as once was the case, and by somewhat similar means, 
in old England. The federal Congress in this country, as 
Parliament in that, had in their terror enacted that the exe- 
cutive proclamations should have the force of law. The con- 
stitution seemed to be really undone. But soon in these 
" Confederate " States, the like incursions of power made 
gigantic strides which the writer strove to avert ; and his 
value of the Union revived. It is now believed by him, that 
in these American States, as in Great Britain, freedom will 
on the first opportunity begin again to make its appearance 
in health. Let the men in authority b© true to the constitu- 



67- 

tion, and tlie people loyal to the Union, and freedom right 
early will again rejoice. 

Nor is that all of self, as the writer has been tempted by 
the retrospect to say that much. The reason here, as elsewhere 
when the writer refers to what he thought or did or did not 
do, is that the interests of the public law and' of private rights 
are involved in all such references, and he aims to advance- 
them. At one time in the war, he urged the principle of tak- 
ing no prisoners of the enemy's soldiers on our soil. That is 
not the black flag which is execrable in his judgment. The 
black flag covers cruelty to prisoners. The principle urged' 
instead, is to take no prisoners of war to be dealt with as such, 
but all captured unavoidably to be treated tenderly, with the 
understanding that they must make haste to get out of the 
country. It was urged for acceptance as calculated to stop 
the war. Now that war is over, the same principle is repro- 
duced as fit for the civilized nations, as more likely, than the 
usages now and of late years in vogue, to prevent wars. It' 
is but too well ascertained that the existing usages of so-called 
civilized war, as if any war was civilized and not savage, are 
utterly impotent to prevent wars. They do indeed but multiply 
them. The reason of the principle urged as a good substitute 
for those barbarous usages, is familiar in other forms. When 
the animal in man, outstrips his reason, he can be held in 
check, or driven back, only by some conduct of his antago* 
nist which will impress his heart, or at the least his imagina- 
tion, with consternation, and overmaster his roused passions. 
By the civil law a man may, so as this principle proposes, give 
no quarter to the invading foe who assails him in his castle. 
Stricken down in his onset, he has no claim to assistance ; 
and if still capable of renewing the assault, he may be law- 
fully smitten again. When entirely disabled, though still 
alive, he may lawfully be left to such succor as others than 
him whom he had assailed, may chance to afford. And the 
principle urged, besides its accord with the civil law, is only 
the same principle in another familiar form of its practical ex* 
pressioD, to wit, that the modern improvement of arms and 
other munitions of war for human slaughter, is inclining the 
10 



68 

nations to avoid war. The writer's articles urging that princi- 
ple during the war, just exactly as they were published in the 
Petersburg Express, will show that he intended it in the inter- 
ests of christian civilization, as well as for success in that 
war. It is but too true to justify the remark, that, in all wars, 
however and whenever prosecuted, the men in authority, and 
those in command, have shown too little aversion to the shed- 
ding of human blood. They have seemed to be more careful, 
if otherwise careful at all, that it is not their blood, nor the 
blood of their kinsfolk, that is shed. The writer deemed the 
principle as he proposed it for practice, eminently likely to 
be influential and effective in preventing national wars and 
the inevitable waste of human life. He also published an 
article in the same newspaper about the same time, expressly 
intended to persuade both armies to withdraw from the en- 
forced service, with their arms, and to repair to their homes, 
and to take care that no more armies should be raised in 
either section — which was said by some persons to be treason- 
able to the South. If other persons did not, nor could, look 
into the vast trouble, except in one of its magnificent points 
of susceptibility and possible issues, it is to be regretted. 
And now the writer says that if /u's right way for readjusting 
the States in the Union, be in due time resorted to, the pros- 
perity of this old State will ere long largely exceed any she 
might ever have reached, with negro-slavery continuing to 
exist. Whilst he sought, with all effort he could, to shield 
that ownership from any violent disruption, he never desired 
it should be perpetuated. He has often put in print his 
opinion that it was " a pecuniary burden '' (in 1863,) and " a 
blighting curse " (in 1832). As to other kinds of property, 
and in every other respect, the writer desires to see the con- 
stitution of the United States respected, and wherein its ex- 
press provisions fail of apt application, its analogies observed. 
In former years, the constitution was the object of the patriot's 
admiration — the theme of the orator's praise — the subject of 
the philosopher's delighted meditation— and the gushing 
spring of the private citizen's security. Would that it may 
a'j-ain and long give to every citizen that sense of assured 



69 

security in all valuable rights of person and of property, 
whicli alone can produce or sustain the proud sentiment of 
freedom, or make a free people happy. All that, if justice be 
done,* can be better accomplished without negro slavery, than 
with it. Here on this phase of the immense troubles of the 
times, I would raise the political Ebenezer of our State. I 
would give no heed to them who say, forbear to discuss politics. 
They do not digest the purport of the august subject. They 
only have a vulgar inkling of its vastness. They surely must 
think that politics consist in scrambles for office, on a theatre 
where personal detraction, or abuse of officials, is the height 
of the argument. With all such, the light of politics shines 
in darkness, and the darkness comprehends it not. Indeed, 
it is true that the witticism of Swift, when quoted as jf it was 
meant for a slur on politics, is sheer nonsense. Not otherwise 
than by the labors of the politician, have two blades of grass 
been made to grow where but one grew before ; or one ear of 
corn, in place of none. It is alone study and free discussion 
of politics that ever produced society or developed its organi- 
zation and economy. The laws the politicians make, are 
necessary to encourage products of agriculture and of the me^ 
chanic arts, and to secure the enjoyment of tbem. 

Though the writer is so impressed respecting discussions of 
politics, still on that most difficult problem of the future of 
the negro, on this continent, he thinks it will be wise to take 
heed unto the teaching of Tristram Shandy, where he says 
that when the precipitancy of a man's wishes, hurries him on 
in his ideas ninety times faster than the vehicle he rides in,- 
woe be to the truth, and woe be to the vehicle, and its tack- 
ling too, (let 'em be made of whatever stuff you will,) from 
which he breathes forth the disappointment of his soul. The 
recent events respecting the destiny of the portion of the 
black race amongst us, have gone ahead of both the fears 
and the hopes of the one side and of the other, on the sub- 
ject of their continued slavery. ' The sudden event of their 



*See President Liucoln'a annual message in 1862, on conipcnsatiou 
for slaves set ffce. 



70 

universal einaucipatioa amongst us, has oatrun the calcula- 
tions of tlie wildest on the one side, and the firmest on the 
other side. The power of the Union which was much valued 
by many, as the surest support of the ownership, until by 
some peaceful process it might he put au end to by degrees, 
has, like a torrent swept away every vestige of title to the 
negroes as a property. And now ihat the ownership has been 
so swept away by the force oi arms as wielded by the admin- 
istration of the government of the Union, the moral power 
of that government, in the might of a milder statesmanship^ 
as the rainbow after the storm gladdens and assures, must be 
exhibited, or there is nowhere to find assurance, or promise 
even, that these States will not be deluged by the mingled 
shed blood of the races. May He in whom all things consist, 
overrule that Union to show itself more valuable to the 
States in ending, than it was. in defending, '' the peculiar in- 
stitution." 

"Whilst curiosity and interest — interest in a million of 
forms — urge the investigation into the future of the negro, on 
this continent, there are dark spaces which the eye of the 
human understanding cannot see into. History, hitherto, has 
exhibited but two examples : Where the blacks excelled, they 
destroyed or drove off the whites ; and where the whites ex- 
celled, the}' subjected the blacks to servitude. It is happily 
for us to be expected, such so far having been the exemplary 
conduct of the blacks, since their emancipation, that such a 
destiny does not await either race. So civilizing has been 
the bondage of the blacks, that, whatever other direction 
under Providence the course of events may take, the one race 
will e:icape bondage, and the other banishment or other bru- 
tality ; and history bear a new record. Though the prejudice 
of race might possibly be overcome in the belief that all the 
human family had a common origin, still that other prejudice 
of color, being constantly visible and incapable of being put 
out of siirht, is ineradicable. The freedom of the black race 
cannot silence that prejudice, much less remove it. As in the 
North it has been, so in the Soutli it will be, that the repug- 
nance of the whites to the blacks, is but increased by the 



71 

ireedom of the latter. It has often been remarked that that 
repugnance is most inexorable in the States in which the 
slavery has longest been abolished, or never existed subordi- 
nating a large black population. If law cannot compel, and 
prejudice forbids, equality of these races, the result must be, 
whilst they inhabit the same region, that contact will produce 
collision. Such collisions will increase in frequencv and vio- 
lence, until one party or the other is the master, unless the 
contact be prevented. This can only be done, by the remo- 
val of the one race or the other, from the inhabited region. 
This can only be done by man's direct exertions, or bv the 
operation of natural causes. Then, the best course for the 
whites, is, under the influence of philanthropy or of selfish- 
ness, to treat the negro with no violence, under color or cover 
of law — to be patient and await the usually slower, but inva- 
riably surer^ways of Providence Who works as man seldom 
knovvs, until His purpose is displayed in the accomplishment. 
The whites have their hands full, so exhausted are they by 
the war, in assisting one another ; and yet they are willing 
to, and will do no less than, extend to the blacks a benevolent 
kindness in all manner of unavoidable intercourse, as well as 
in engaging them in any services they are suited for at fair 
wages — and a generous justice in fulfilling all contracts with 
them for their services. 



THE EIGHT WAY. 

It is in the mind of the reader to ask why does the writer 
persist in his right way? The answer is, because it is the 
right way. But the objector rejoins that another way is 
almost consummated. Not so fast, the writer must surrejoin. 
The time is not yet, when that other way by provisional gov- 
ernors, which President Johnson, with 60 much of good dis- 
position that all admire it, has driven so far, should and may 
be balked. That time cannot arrive, until the Congress shall 
liave assembled. When it has assembled, the objector sug- 
gests, it will be unwise in the Congress to undo so much 



72 



filready done — it will bo annoying, not to say unjust, to the 
South, some of the States in which will not only have in- 
curred the costs of the election of members to the Congress, 
but, much more, have held conventions and formed constitu- 
tions, &c,, &c. It will be cruel to compel the South to run 
the round of all that work again. If all that were necessary 
to be done over, very much of which need not be jetouched, 
however, still it would be wise to require it, and for the 
special purpose, eVeu if it would serve no other than the 
purpose, of making it known that, at whatever cost or incon- 
venience, the constitution of the United States must be ob- 
served. The new constitutions that will have been adopted 
by State conventions, will not need to be retouched, if re- 
publican in form, and within the reserved rights of the States. 
It will be wise for the Congress to intervene to do its appro- 
priate work and high duty, even in respect to the less valua- 
ble consideration of the pecuniary costs involved ; because, 
to make it known that the right way in this conjuncture, must 
be pursued, will exert a salutary influence in preventing 
other departures which are certain to be more expensive than 
the regular course. For instance, consider the twenty-seven 
hundred millions of debt incurred (whoever was at fault) by 
the late departure from the right way, the chief wrong of 
which, to wit, the dislocation of these States from their co- 
operative labors and correlative benefits in the federal Union, 
is all that is possible to be corrected. If the President with 
the acquiescence of the Congress, may appoint the governors 
of States and through them severally control all elections in 
each State, why may not the Congress with the assent of the 
President, or by a two-thirds vote overruling his veto, direct 
the regulation of the right of suffrage m each State ? Bach 
would do sio-nal violence to the constitution, and either usur- 
pation would be quoted as a precedent for the other. The right 
way would avoid both 

If the right way is not pursued in correcting that wrong, 
the government of the United States will receive a shock 
tinder which it must stagger, and from which it -will likely 
never recover. 



17 '■» 

to 

It is passing strange ; and can it be that the All-wise One 
intends that the scheme of self-government, by written con- 
stitutions and concurrent laws, made by representatives, by 
liberal suffrage, by the people chosen, shall not succeed? 
"What is it that is passing strange, which causes the distress- 
ing doubt to spring, and almost have sway, whether what the 
world has esteemed the most perfect federal system vocal with 
popular freedom, can have success ? It is that the Press, the 
foremost enlightener of the age, seems not to understand the 
bearings of this great occasion. The Press, South, is bespat- 
tering with its eulogistic strains the most signal departures 
from the representative principle, as displayed in the Presi- 
dent's plan for restoring these States, without bestowing one 
thought expressed on the constitutionality of that plan, as 
though indeed we had no constitution. It is not that they 
do not understand that most admirable instrument that ought 
to be (if I am in error that it is by this Press considered) 
sacred. It is considered sacred by them, and yet they over- 
look its injunctions, and jump over its limitations, to get, at 
once, as the seeming interest of the hour suggests, back into 
the Union. And the Press, North, with as little regard for 
the constitution, is, in the main, opposing that plan, not for 
the reason that it is unconstitutional, but because it stands out 
boldly and bravely against their desire to defeat it for this 
that it is not as unconstitutional as they would have it. They^ 
insist that these States shall be constrained to give up the 
right, they have always enjoyed, to regulate suffrage by de- 
termining who shall be invested with that political privilege, 
each State for itself, and no one, or all others combined, for 
any other. That Press insists that Congress shall intervene 
in this vital subject, to control the State. As none are so 
blind as they who will not see, and the object here is so con- 
spicuous that they who will open their eyes cannot fail to see 
it and to discover the road to it, the conclusion must be, if 
they do not find the right way, that they are smitten with ju- 
dicial blindness. The Divine AVisdom would not so afiiict 
them, unless it is His holy will to use them to sink the sys- 
tem and for the good of the human race bring in some substi- 



74 

tute. If this be so, my labor is in vain, and I am smitten 
with judicial blindness. In my judicial blindness, if it so be. 
He gives me, nevertheless, soundness of mind to say in devout 
humility : His will, not mine, be done. • 



Petersbukg, Sept. 22d, 1865. 

There are certain questions of constitutional construction 
that have long been in dispute, and it seems it would be well, 
if they could be settled, so as to be understood by all men 
eno-ao-ed in the public councils. I have for years bestowed 
much study on those questions, and whilst I do not presume 
that I can accomplish the object of getting a universal con- 
currence in my views, such as there is that two and two make 
four, still as there are some persons who cod fide in my views 
of such subjects and have requested me at this time to express 
my opinion on two of them, in the newspapers,* I have maae 
up my mind to do so, not of my own motion, but at the re- 
quest of other-^ whom I will not disoblige by declining. 

1. It is in dispute whether a State Judge declared by the 
constitution of his State ineligible to any political ofiice, may 
be admitted to the seat in the Congress of the United States, 
if elected by the qualified voters, and ascertained to be in all 
particulars qualified as required by the constitution of the 
United States. 

On that question I am of the opinion to say that the Judge, 
thouo-h he is ineligible, should, when he has been elected, be 
admitted to the seat, if the requisite qualifications prescribed 
by the Constitution of the United States are found to be pos- 
sessed by him : notwithstanding he does not possess the. State 
qualification. At once upon the enunciation of that proposi- 
tion, most persons will say, that it is paradoxical. Most per- 
sons will dissent at once, because they see on the surface that 
the proposition is, that the man is ineligible, and still, if elect- 
ed, may be admitted to the seat. Let such consider that our 



* Parts of This article were fir&t published in the Petersburg Ez- 
press. , 



75 

system is complex, and not simple and single. Observe the 
terms, if elecUd. In that expression in stating the proposition, 
and in that act (<if making the election), is comprised the ex- 
planation which relieves the proposition of its paradoxical 
appearance. The election will have been in violation of the 
constitution of the State, although the power to make it is 
not inhibited t<3 the State by the constitution of the United 
States. The power is not inhibited to the State, nor to the peo- 
ple thereof, b}^ the constitution of the United States ; but the 
people of the State by their State constitution have prohibit- 
ed themselves from making the election. The Congress, not- 
withstanding the State's interdict of its people to m.ake the 
election, ought to admit the man who v/as recently a Judge in 
his State, to the seat, when all tlie qualifications concur in 
him, which are prescribed by that government, that is, by the 
constitution thereof. Yet, he ought not to have been elected. 
"Why not ? Because the State constitution forbids his eligi- 
bility ; and the people, that is, the qualified voters in the dis- 
trict, ought to have been governed by the organic law of the 
State. No less ought the constitution of the State, which is 
"\\& organic law, to be obeyed by the people of the State, until 
it is altered b}- the people thernselves or adjudged by some 
competent court of law to be repugnant and of no efieci;, 
than ought the ordinary laws of the State, which are the acts 
of the State's legislature, to be obeyed, until they are repealed. 
The people have not a right to elect whom they please, but 
such only as are qualified according to the laws. They only 
have the liberty to elect such as are vfithin the law. It is in 
this country, as Blackstone says it is in Great Britain : ''Sub- 
ject to the restrictions and qualifications, every subject of the 
realm is eligible of common right." It is only the selfish or 
designing aspirants who will tell the people that they have 
the liberty to elect whom the law disqualifies. It is only the 
lawless who will suggest that the enactment of a regular leg- 
islative body, be it the Congress of the United States, or a 
State legislature, or a city council, may be disregarded by 
any within its jurisdiction, until it is repealed or adjudged 
vcid by the judicial authority — much less should the provi- 

V! 



76 

sions of a State constitution be neglected or violated. Each 
house of the Congress is bound by the public laws of the 
United States, and the q^ualified voters of each State, are 
bound by its public laws. Then, the conclusion is that though 
a citizen, a recent judge or other person, who is declared in- 
eligible by his State, should be admitted to the seat after he 
has been elected to the Congress, in every case in which he 
is qualified as the constitution of the United States requires; 
yet, no one who is disqualified by the State, ought to be 
elected, because the law in force ouo-bt to be obeved. 

In the same principle is the case of every one who is dis- 
qualified to hold office under the Alexandria constitution 
which is now being enforced in this State. The provision is, 
in substance, that no one who was in " Confederate " or State 
office, aiding in the late rebellion, shall hold office under that 
constitution. Be it observed that the opinion has gained some 
footing, that a member of the Congress, is not a State officer^ 
though he is elected under the State's laws to serve the State. 
Assuming, here, that he is a State officer, and it being then 
clear that he is disqualified by the present constitution of the 
State, the principle vindicated by this argument would require 
that be should not have been elected to the Congress, but when 
elected, if qualified in all respects as the constitution of the 
United States requires, he should be admitted to the seat. 

That doubt which sometimes prevails to the extent of gov- 
erning the expression in acts of legislaton, is the cause of the 
tautology in the third article in the Alexandria constitution. 
That doubt, whether a legis.lative representative of the people, 
is an officer, is admitted into that third article where it declares 
that no person who held office under the " Confederate " or any 
rebellious State government, and repeats or was a member of 
the " Confederate " Congress or of any State legislature in 
rebellion. The repetition implies that it was not certain that 
a member of either legislature, lield officx. And yet that 
doubt is rejected in the seve^ith section of the fourth article of 
that constitution, as well as by the like section of the consti- 
tution of Virginia ratified in 1851, and which is still tJie con- 
stitution, if the State has not been out of the Union, by rea- 



son of the rebellion. Tlint doubt so admitted by the third 
article, is rejected by the fourth, where it is declared that the 
removal from his residence of any person elected to either 
branch of the general assembly, " shall vacate his office.^'' So 
plainly is a legislative representative of the people declared 
in Virginia, to be an officer. And clearly and completely the 
position of a member of any legislature., is an " office " which 
means " a particular duty, charge or trust conferred by pub- 
lic authority, or for a public purpose." It would seem to be 
needless for legislators to be addicted to the circumlocution 
the Alexandria constitution indulges and itself contradicts. 

So much only on that question which is so fruitful of views 
in support of the conclusion arrived at. The other question 
is more difficult, though it is capable of as definite a conclu- 
sion. 

2. It is in dispute whether the Congress can, by a statute, 
or in deciding a contested election, require, besides the oath 
to support the constitution of the United States, another oath, 
or any other oath, to entitle the elected to the seat. 

I propose to give my views of this topic, by responding to 
so much of a late letter from that distinguished gentleman, 
Hon. John M. Botts, as relates to this subject ; and from which 
I dissent. All Mr. B. urges to the effect that the enactments 
of the Congress, including the impending test oath, ought to 
be obeyed, until repealed or adjudged void, is incontroverti- 
ble. The leading doctrine, however, of his letter, it seems to 
me, has no foundation in our system, and is repugnant there- 
to in all relations. Mr. B. cites and recites the third section 
of the sixth article of the constitution of the United States, 
which requires the oath to " support that constitution," and 
also as positively prohibits any "religious test oath," for any 
office. State or federal. He then says : 

"Here, then, (in that section,) is to be found the prohibi- 
tion, and the only prohibition, upon the action of Congress ;" 
{to wit) " that no religious test oath shall be required." 

Now, I apprehend, a single question will expose Mr. B.'s 
misconception of the constitution. Has the Congress authori- 
ty to require an o^th disqualifying every citizen, in other' 



7.8 

respects qualified, who cannot or will not take it, to tlie efl'ect 
that he had done no act since the war ended, adversely to ex-, 
tending suffrage to negroes? That is not a religious tost oath, 
it is understood. Wno will contend — will Mr. B. — that the 
Congress has power to prescribe such an, oath disqualifying 
all who will not take it ? Yet, his opinion and arguments 
admit the existence of the authority in the Congress to do 
that very thing, if only their wisdom and experience so sug- 
gest* 

The power to require such an oath on the subject of uegro- 
suffrage, would enable the Congress, (should the President 
assent, or should they overrule his veto,) to deprive the State 
of its power to regulate suffrage. It would admit to sufl'rago 
the negro, against the State's consent. 

Mr. Botts adds, and labors to show, that " the true reading 
of that provision, as it seems to hivi, is, that Con.gre?3 may 
prescribe such othor <jnalifications a?v their wisdom and expe- 



*It would seem, to be indisputable that the expressipna, of. Chief, 
.Tustioe Marshall, in ^rcCullocli v.s: State of Maryland, 4Whfeatbii; 
do not dissent from the view tak,*!n 'in .the text. He says :/;'yrhe 
(iath which mi^^ht be exacted— that of fidelity to the constitution — ^ 
is prescribed, and no other can bf*; reqiiivod.''' Bti!! he addk to that' 
omphalic declaration,, what scenis tO; be a direct contradiction .;, try 
wit, says he : " Yet, he would li!> chargc'l with insanity who should 
contend, that the legislature" — that is, the.Oongresw— " raij^^ht not 
superadd to the oath directed by t'le constitution, such other, 0iqs6;/i qf 
office as its wisdom might sugget't." No otheroath than that sp'jcifiea 
can be required, and yet such other oatii as wisdom may suggestji 
may be superadded. The con trad iction will disuj)[)ear, and it caji^ 
only be made to disap}>ear, when, Whether the membersiiip'ih a leg- 
islative bQdy is an office, or nij(t, Jt is understood that .tl^e oath of 
fidelity in the dischaiu'e of the duties s>f the office, is sir.iply, no 
more or less than, neither beyond nor sliort of, but exactly equiva- 
lent to, the oath of fidelity to" th-e constitution. In thisyiew, let it 
be observed that the superadded' oath would not in su bst a I'rce impose' 
any additional obligation. Only tha^f©rcpS;Would be variedvand tliie 
only good effect, if "any goc>'l purpose is served, wouhl be in the fact 
that by the varied form of the oath, the attention is directed to th€S> 
particular duties of the oiBce- And le^iij be observed, that the oath 
of office — such only as an oath of office "ought to'be— ^au'd according 
to the meaning of the wortHs'', to utmost latitude — signiflea thit the 
l>arty will, in exercising the office, ir^ discharging its duties, be, 
taitliful to do all the law requires fcH'b^'ddhe ih\he ])Osition. The' 
oath of office does not comprehend theJdea that the past conduct of 
the party, has all been consistent with, or that no act of his past 
life is inconsistent with, the nature of the duties of the office to 
which he is assigneel, or the character of hhw who, whilst he is fill- 
ing it, must show a conduct adapted to the abstract integrity of the 
trust. 



r- 







rience may suggest," ko,, in addition to those expressed in the 
constitution, so only that it is not a religious test oath. It 
seems to me, that the Congress, in the light of the principle 
of construction which I will presently indicate as conveying 
my argument, has not the power to impose (and its exercise 
would be an imposition, indeed, of any) such additional quali- 
fications as circumstances may arise and prompt them to pre- 
scribe, ivhilst the constitution is unaltered. The practical ex- 
tent of the authority of the Congress, is that they shall see 
to it that no man shall be admitted, unless the qualifications 
^vhi.chare prescribed, do all concur in him. If not to prohilKt 
it to the Congress, gives the authority to impose disqualifica- 
tions, then the constitution of the United States is not com- 
posed of grants of power, as all parties have hitherto conced- 
ed it is, but it is, in that view, an, instrument comprising ple- 
nary powers unrestricted by reservations to the States or to 
the people, and unlimited, except only wherein the limitation 
is. ex pressed. If tbat be so, then it is conceded that the con- 
stitution of the United States is an exclusive arbsorption of 
the entire system, rejecting State rights, even the right to, 
regulate suffrage. That the legislature of a State may fix the 
representative age. and prescribe the anti-dnelling oath, (to 
both which Mr. B. refers, and the authority, to do which, I 
apprehend, he most erroneously derives from that section 
which he claims confers such large power on the Congress, 
on , the contrary,) is manifest in this that the power to do those 
1;^ings remains with the States, because it is not prohibited to 
them by the constitution of the United States. By reason of 
the absence of such prohibition, the, power to fix the repre- 
tentativQ's age and to prescribe the anti-duelling test oath, is 
expressly "reserved to the States respectively." * 

The specific grant the tigction conyeys, is, to require an 
oath to support the constitution of the United States. The 
specifiic express prohibition is that no religious test oath shall 

, . -. , . _; ...ll V __ ^___ . 

*Thongh much of this is in fornier f)ages, I trust it will be accep- 
table to t^ie reatler, wlio. will .tind some thoughts expressed hej;e< 
that are not embraced "in the foregoing reference to tlie same subjects* 



80 

be required under the United States. It niaj be construed to 
prohibit a State's omission to require its enmerated officers to 
take the oath to support the constitution of the United States. 
It may also be construed into a prohibition on the several 
States to require of their officers in the home service, any re- 
ligious test oath. This has always been a received construc- 
tion. The specific grant to require one oath does not cover 
another, unless that other is both proper aud necessary. The 
purpose is to bind the member by oath that he will support 
the Constitution of the United States. To effect that, it is not 
nicessary that he has always supported it. Such was the con- 
temporaneous exposition and has been the uniform practice, 
as the invariable form of the oath attests, to wit — "You swear 
that you will support the constitution of the United States " 
— and it is not, nor ever was, that the affiant always, or during 
any given past time, has supported it. 

. Using the language of Senator Benton — "The States, being 
original sovereignties, may do what they are not prohibited 
from doing ; the federal government, being derivative, and 
carved out of the States, is like a corporation, the creature of 
the act which creates it, and can only do what it can show a 
grant for doing." Now, thi^ grant from the States is simply 
to require an oath to support the constitution of the United 
States. Of course, a requirement of any other oath, even 
that the party, in the past time, always, or at any period, sup- 
ported, or did not by any act oppose, that constitution, is out- 
side of the grant, and aggrieves the genius of the government 
of limited authority. If the utmost extent of the grant, is 
not the exact measure of the authority, then there is no stand- 
ard or steady rule — no bounds of the poAver to be exercised, 
but the unbridled will of the dominant party. 

It would be difficult to bring the requirement of any other 
oath, under the cover of a curious distinction which some as- 
tute conductors of the Press have at sundry times sought to 
impress. They assert by the terms they use to state the 
shadowy thought, that there is a difierence between enact- 
ments that are exira-constitutional, and yet not «?iconstitu- 
tiODal. Now, extra and un denote the game negutioD. The 



81 

one is Latiu — the other Saxon — that's all. Each is a prefix 
of negative significance. Extra means beyond, and im not 
within; and if the act of legislation is beyond, it is not with- 
in. It is a distinction without a difference, and is the more 
exceptionable, because it seeks to escape the substance of 
usurpation, and to hide itself in the shadows of authority. If 
authority is needed in support of this view, that which is very 
high is at hand to show that extra is equivalent to un or not. 
Lord Chatham said, of Lord Mansfield's discourse on the mo- 
tion in arrest of judgment in Woodfall's trial, that that dis- 
course was "irregular.extra-judicial and unprecedented" — that 
is, not judicial. 

The requirement that "the members of the State legisla- 
tures," and the other State officers enumerated in that third 
section, shall be " bound by oath or affirmation to support 
the Constitution of the United States," is not a a prohibition 
on the State to prescribe other qualifications for the officers 
from the States to serve in their general government. If the 
power of the State were derived from that third section, then 
in the many cases of State offices, in which the Constitution 
of the United States prescribes no qualification, the State 
could prescribe nOne. Then, indeed, the demagogue could 
ply his appeal to the popular passion to enjoy their liberty to 
elect whom they please, and lay it on with success to the ut- 
ter ruin of regulated liberty. 

This subject is serious enough to justify an appropriation 
of the language of the Scriptures : Strait is the gate and nar- 
row is the way, tjiat leadeth unto the constitutional authority, 
and few there be, of late, who find it. Whilst no portion of 
the people should elect any whom the constitution of their 
State disqualifies ; still it is the duty of the Congress to ad- 
mit whom the United States constitution does qualify. The 
Congress has no authority to require any oath, except the 
one "to support the constitution of the United States." The 
State retains the power to require any oath, except that they 
are prohibited from requiring any religious test-oath. These 
strait gates must be entered at, and the narrow paths be trod, 
by the majorities in j^ower, in the appropriate spheres, or other- 



82 

wise our system cannot be preserved. It may, otberwise, be 
patched up for a time, but before long it will perish. How 
melanchoh^ it is that they who have done the South most 
detriment, have been of her own immediate household.' How 
deeply it is to be regretted that prominent men of the South 
should, at any time, and especially just now, express the 
opinion that the Congress has authority t^'plresCribs ttw?/ (biit 
a reli'j-ious) test oath. As limits are set to Thd^'eik'etcise Of 
power, for the protection of mindrities, the' Sbtith 'snr'ely 
should not fail in exercising the- privilege of free' debate, to 
insist that the constitutional limitations shall be respect bd. 
How injudicious in any to assert or assent to the proposition 
that as the reins are in the hands of the' Korthj the South 
should fold up her arms and close her lips and utter not a 
word of remonstrance, or expostulation, or argument. Any 
abstinence from the frankest and most earnest sugo-c^tions df 
facts or of logic in support of our I'ights, implies a belief thalt 
the representative men of the North have souls too frigid to 
conceive or too narrow to nourish noble or just sentiments. 
For one I do not concur in the ungenerous rejection. They 
who counsel such abstinence from free expressions in support 
of our constitutional rights, on the ground that we are in the 
hands of the North, as clay in the hands of the potter, do 
not tell us how we can or when we will get out of their power 
of numbers over us. They seem not to know, or if they 
know, not to remember, or if they remember the fact, not to 
be animated by its knowledge, that there is a vast difference 
between a determination to obey the existing laws, so long as 
they do exist, and that other-disposition in derogation bf ele- 
mental rif>-hts of freedom, to let lawless enacimehts remain in 
the existing form.s of law exacting obedience thereto in utter 
abandonment of constitutional reservations. The South, the 
■whil6 obeying the laws and seeking their correction and re- 
duction to the right standard, should shake ofi" the dust of the 
dirty grave in which the late elections have buried her dig- 
nity, and a portion of the public Press by its course is threat- 
ening to inter her honor also, and stand forth boldly for her 
ri^irhts under the laws, not as the laws arc, but as they should 



)0 



be. How unlike is iheir counsel, to that of Junius, who, dedi- 
cating a collection of his letters to the English nation, exhort- 
ed and conjured them " never to suffer an invasion of their 
political constitution, liowever minute the instance might ap- 
pear, without mahing a determined, persevering resistance." 
Postscript. — A part of the argument of Mr. Graham, of N. 
Carolina, has come under mj eye this date (Oct. 18). It is 
not agreeable to dissent from so able a man^, especially when 
his views of the test oath concur with my own. The question, 
however, is so important that I expect to be excused for con- 
troverting his opinion on one topic. If I do not misconceive' 
him, he insists that an enactment of Congress may be disre- 
garded, if believed to be unconstitutional. AVho is compe- 
tent to determine its conformity to the constitution ? Can 
any tribunal but the body itself or the Supreme Court ? If 
so, what other appeal is there in the case ? Admitting that 
there is no way in which the applicant can compel the branch 
of Congress to which he has credentials, to allow him to take 
the seat, it would only show the fact that the constitutional 
provisions are imperfect. Admitting that the case is incapa- 
ble of being presented to the supreme court, so that it might 
adjudge the test oath void for want of constitutionality, or 
might command an admission to the seat, and yet that would 
not show that the system is inadequate to a correction of the 
supposed departure in requiring au unconstitutional test of 
membership. The Congress may repeal the law which they 
had improvidently enacted. The admission of the man to 
the seat, whilst the enactment is not formally repealed, would 
be a virtu9.1 repeal in the particular case ; and that, it is sup- 
posable, would be done in any case in which one branch of 
the Congress would decide that the enactment was unconsti- 
tutional which prescribed the religious or other test oath, the 
other branch dissenting and insisting it shall remain in the 
forms of law. But suppose the Congress will neither repeal- 
the test, nor will either branch admit a man elected who will 
not take the oath, it will be in vain that the whele body of 
the electors shall, though never so deliberately, have sent up 
the man deemed by the "body, inadmissible. Yet, for all that, 
12 



. 84 

it is only au inconvenience, of the same sort, and differing 
only in degree from tlie Avaut of representation, by the death 
or the expulsion of a member, during the interval until the 
vacancy is filled. The greater inconvenience, if the Con- 
gress will persist, can be remedied by the recurring elections, 
until the body in both branches is renewed of numbers who 
ivill formally repeal the obnoxious test. It were better that 
any portion of the people should be subjected to that incon- 
venience for any length of time it could possibly exist, than 
that the doctrine should be received and acted out that enact- 
ments, by competent legislative bodies, may be disregarded 
before they are declared of no effect by the constituted au- 
thorities. 

To be more explicit, having thus repelled the sentiment at 
large which asserts that an existing enactment, though never 
so plainl}^ unconstitutional, may be disregarded, and to do 
exact justice to Mr. Graham, as respects the point on which 
alone I dissent, he shall here state it as it is in his letier. He 
recites the oath which, as it is, is to the effect that no one who 
bore arms in or countenanced the late rebellion, shall ever 
hereafter be elected or appointed to any office in the general 
government. Admitting, as he does, that whilst the enact- 
ment remains in the forms of law, it does exclude from office 
the nineteen-twentieths who but for the oath would be eligible, 
Mr. Graham, on the point of our disagreement, still states it 
thus : "A formal repeal of this law, is not necessary to render 
it nugatory, so far as relates to its effect on the members of 
Congress." Mr. G. then proceeds to enumerate instances. 

I have conceded in the general argument I have made 
against the sentiment (which is but too prevalent in favor) of 
allowable disregard of existing enactments thought by the 
public or by distinguished men, before being adjudged, to be 
unconstitutional, that where one branch of a legislature, at 
any session after the enactment, shall consider it ought to be 
repealed, it will be apt to regard it as of no force, in the act 
of organizing the body, even without proceeding to ascertain 
whether the other branch will concur in the repeal. It might 
80 happen that men in the same class—on the same footing 



85 

of legal ineligibility — would be admitted into one branch, and 
excluded from the seats in the other. This disregard of the 
law would eagerly seek to find excuse in the fact that " each 
house is the judge of the elections and qualifications," of its 
own members. But each is the judge, under (not above) the 
law. This judicial power would not show, in the supposed 
case, that the disregard of the law would be justifiable. In 
point of fact, and to the eye of the law, it would be a demon- 
stration to the contrary. It would show the one house in 
factious opposition to the recorded concurrent judgment of 
both. Just such, in the moral aspect, at the least, were the 
cases of Missouri and New Hampshire, as quoted in Mr, G.'s 
letter. In the teeth of the decennial act of 1842, the house 
of " represcmtatives admitted members elected by general 
ticket, whilst the act required they should have been chosen 
by districts in each State. That was simply a disregard of 
the law; and Mr. G. says so in terms by stating truly that "a 
majority determined to disregard the law," and did admit the 
men presenting credentials of election by general ticket, which 
was the manner of election the law interdicted. That is all 
that Mr. G. could have said, or any one can say, justly, of that 
or any other neglect of an existing enactment which is the 
law, until it is annulled by the competent authority, that is, 
by repeal or by adjudication : to wit, that it was a disregard 
of the law. So, the examples cited by Mr. G., as any others 
that might be, that a formal repeal is not necessary to get rid 
of a law, only prove a disregard of the law. Then, we are 
remitted to the question whether it is allowable to disregard 
the law. The argument that it is not necessary in our system, 
returns in its majestic strength, and re-asserts that any mis- 
chief or inconvenience, if not otherwise regularly corrected, 
may be removed by the popular elections recurring at short 
intervals. If there were no remedy, it would not show that 
the law ought not to be the existing rule. It would only 
show that the system has not reached perfection and ought to 
be improved. 



&3 
Tilt Co'iisfiiutional Power of Pardon. 

Petersburg, Nov. 15tb, 1865. 

It is curious enough that Mr. Seward's instructions to the 
United States Minister at the Court of France, is somewhat 
cited as an anthorit}^ in support of relief from confiscation. 
The relief is invoked with the understanding, and to advance 
it, that the Proclamations issued by the Presidents, Lincoln 
and Johnson, are effectual, and that the intended benefit must 
be enjoyed, independently of any exercise of authority by 
the courts. Now, whatever there is in those instructions, it 
is to this extent, and no more, thai, the judiciary of tJie United 
States is a co-ordinate department. The instructions say that 
should the President attempt an unconstitutional act, '-he 
would be prevented by the judicial authority, even though 
assented to by Congress and the people." If, then, the Presi- 
dent has done the unconstitutional thing of granting pardon 
with restoration of all rights of property, before conviction — 
before the persons pardoned are ascertained to be offenders — • 
may not that unconstitutional thing he prevented hy the judicial 
authority ? May not the independent court proceed to confis- 
cation ? After that, the co-ordinate power hitherto of the 
court, would be at an end ; and then, but not till then, the 
executive authority might interpose — as would be well and 
wise it should. All acts, of whatever sort, are best in order. 
"Were Congress to repeal the confiscation laws, still the judi- 
cial authority would have jurisdiction of cases already arisen 
under the laws whilst they were in force. He that would be 
just must be logical. 

A few observations of a more general nature may be sea- 
sonable. Blackstone says that a reprieve may be granted 
before or after judgment. Wliilst that learned commentator 
does not say that pardon may be granted before conviction, 
he does say that the court is bound to take notice of it ex 
officio; just as it is, however, of any other public law: and 
hence it is that the King's cii-irter of pardon must be brought 
to the knowledge of the court by special plea. Then there is 
ftQthing in the authority quoted to show that the party sup- 



87 

posed to be v.n otlendcr can avail himself of a. general pardon, 
until lie is at least put upon his trial- 
There is much looseness in Kent and Stor}^, and the " Fed- 
eralist," on this topic of the prerogative of pardon. They 
saj the power of pardon, in the President, is unlimited — gen- 
eral — unqualified — except in cases of impeachment. Is such 
the true construction of the grant of the power ? The lan- 
guage of the constitution is, jJ^rdons for offences against the 
United States. The limitation is twofold. There must be an 
offence, and it must have been committed against the United 
States. Nor is that all. The oftence itself is not pardoned, 
but it is the o^ender to whom the pardon must convey a re- 
mission of the penalty annexed. When does the penalty 
attach ? On conviction, and not before. The offence and the 
offender must be ascertained and identified, and this can only 
be done judicially, whenever, as in American governments, 
Story says not more aptly for another purpose, " there is a 
separation of the general departments of government, legis- 
lative, judicial, and executive, and the powers of each are 
administered by distinct persons." Indeed, in all the Ameri- 
can authorities, there is but one statement, (so to call it,) which 
goes to show the opinion of commentators to be that pardons 
may be granted before conviction or arraignment, and this 
partakes more of the looseness of the demagogue, than the 
accuracy of the jurist. That is as follows : " The principal 
argument for reposing the power of pardon in the executive 
magistrate in cases of treason, is, that in seasons of insurrec- 
tion, or rebellion, there are critical moments when a well- 
timed offer of pardon to the insurgents, or rebels, may restore 
the tranquility of the commonwealth." Does that declama- 
tion outweigh the solid view by which Story repulsed Black- 
stone's slur that "the power of pardon cannot exist in a 
democracy" — to wit: that the legislative, judicial and execu- 
tive department each has its appropriate duties assigned by a 
written constitution, imposing limitations on each! Logic 
forbids it. 

It is salutary and wise, as Story argues, that the power of 
pardon is confided to the executive, and for the reasons he 



88 

assigns, and others ; and It is a lovely power in its exhibition, 
of clemency. It is a salutary power, with promptness, as a 
single executive may, to bring to quiet the turbulent m the 
act of their violence. But, then, nevertheless, it is, in this 
instance, by the constitutional prescription, only and not be- 
yond, a 2^romise of pardon, and to that extent, and in terms, 
the presidential proclamations to persons in rebellion should 
be — that if they will at once desist, though convicted there- 
after, they shall be pardoned. Why the trial, if pardon cer- 
tainly is to follow conviction ? asks the advocate of exercis- 
ing the power before conviction or trial. The answer is 
obvious. The violators of the peace of society should be 
made to feel that they shall not go to what lengths they please 
with impunity, and stop just there, and be held to no account. 
The sound view v/as expressed the other day, by President 
Johnson, on the occasion of the presentation, by a deputation 
of twelve of the fifteen thousand women in Baltimore, of 
their petition for the pardon and immediate release of Mr. 
Jefferson Davis, when President Johnston said to tbem : the time 
is not yet come for me to he magnanimous. Yet, why not in the 
case of Mr. Davis, as well as in others ? The occasion craved 
the interposition of the just sentiment, that as the obscure are 
equal to the more distinguished, in the rights of freedom, so 
also by the law each class is alike liable to its penalties. The 
President was not governed by prejudice, and he surely will 
not reply that the law may be made void, or have effect, as 
the policy or the passions of the day may decide. The spirit 
of the law was exerting in him its inculcation and controlling 
influence. 

All whatever that has been alleged in conflict with this 
view, to wit, that the power of pardon conferred by the con- 
stitution on the President, consists in and is confined to cases 
in which the parties have been judicially ascertained to be 
offenders, and the punishment by regular trial according to law 
has been awarded, is, and only this, that the party, at large, 
who petitions the President for a pardon, thereby confesses 
that he is an oftender. It would seem to be enough to say, 
in reply, that such groimd of defence of the exercise of tlie 



81) 

power before tlie party is judicially ascertained to be an of- 
fender, or, at the least, before being put on trial, is in conflict 
with a fundamental principle of criminal jurisprudence, to 
wit, that a confession is not admissible as evidence upon a 
trial, unless it was voluntary. If induced by fear or the flat- 
tery of hope, and, especially if made in the presence of a 
person in authority over the prisoner, or any party liable to 
arrest, because under suspicion, the confession is not admissi- 
ble. In the ground taken in suppt rt of the pardoning power 
in the President, before a trial, both conditions concur, either 
of which would be enough to exclude the confession as evi- 
dence of guilt. The party petitioning is influenced by the 
flattery of hope, and the extorted confession is made to the 
man in authority who dispenses the pardon. In illustration 
of the soundness of the view denying the power, the fact is 
notorious that many, under the influence of fear, have peti- 
tioned for pardon, who needed no pardon, and many more 
who were pardoned already. 

What says DeSolme, of the king's power of pardon ? It is 
that " he can pardon offences, that is, remit the punishment 
that has been awarded in consequence of his prosecution." 
We should not let the lessons of old England's experience be 
lost on us, which tell us that there is no better way of build- 
ing up the royalty of executive power, than by encouraging 
proclamations from that department in this country. It was 
said more than eighty years ago, that the "star-chamber dif- 
fered from all the other courts of law, in this : the latter were 
governed only by the common law, or immemorial customs, 
and acts of parliament ; whereas the former often admitted 
for law the proclamations of the king and council, and 
grounded its judgments upon them. The abolition of this 
tribunal, therefore, was justly looked upon as a great victory 
over regal authority." 

The writer knows of no authority, in the way of judicial 
decision, in England or America, to justify the exercise of the 
power of pardon, with or without restitution of rights of pro- 
perty, before trial. The caseof A'm^f vs. Amery, ii. T, Reps., ad- 
judicated the question of the power of the crown to |)ardon a 



90 

forfeiture and to grant restitution to a corporator wliose riglits, 
■whatever they were, of course, were derived to him by the 
specific provisions of tlie act of incorporation. The case of 
the United States vs. Wihon, in which Blackstone is quoted, 
as above, is simply a case of extra-judicial opinion. The 
question was not before the court, to decide whether the court 
was bound to take notice of a general pardon which was not 
before the court by special plea in the case. The facts were, 
in this case of Wilson, that the pardon referred to was ex- 
pressly restricted to the sentence of death passed upon the 
defendant under a former conviction. — So there is nothing in 
those cases, and there is no other, touching the controverted 
power of the President to pardon a party before he is put 
upon his trial or regularly charged with an offence. 

Two observations shall conclude all the writer desires to 
urge for consideration on this subject. The law of Virginia 
is that no person shall be pardoned hefore conviction, wnich 
excludes that idea so much relied on, in the public talk, that 
a person's petition for pardon is a confession of guilt, and suf- 
fices as the foundation for an exercise of the pardoning pow- 
er. This is of a sort with that other loose notion of the 
commentators, that the power is confided to the executive, be- 
cause he can act more promptly than a legislative body, and 
therefore may grant a pardon and prevent a trial; The con- 
fession is extorted by the prospect of pardon, and is not fro::i 
contrition, is one of the observations I deem important to re- 
peat ; and the other is that the executive proclamation to 
insurgents, ought only to be a 'promise to such as will at once 
desist, that they shall be pardoned, aftel being brought by 
the government's prosecution to conviction. 

The writer has here expressed these views of the power of 
pardon, not with any desire that any thing, in this connection, 
President Johnson, in his admirable magnanimity, has done, 
shall be reversed, but with the hope that, as far as they are 
just, they shall exert their appropriate influence on future oc- 
casions, in shaping the legislation under, and the administra- 
tion of, the government of the federal Union. 



, ' 01 

The next Congress — The Constitution the SoutKs safest Guide. ■ 

Petersburg, Nov. 4, 1865. 

It is a mistake that is not unfrequently made, that they only 
who have a duty to discharge officially, have a right to express 
opinions how it ought to bo discharged. It is true that any 
one who undertakes to declare how another shall discharge a 
public duty — in which every citizen has an interest and a 
right to speak — ought to show that he understands the sub- 
ject. Nor is th#t quite all. The official, high or low, who is 
advised in the right lomj to desist from any mode of accom- 
plishing a good end, ought to desist and to adopt the better 
way advised by any citizen. Under the guidance of these 
and like sentiments which it would be tedious to enumerate, 
I have lately exercised my right to suggest how I think the 
late rebel States ought to be brought back into their regular 
working in our federal Union. I am gratified to see the Clerk 
of the House of Eepresentatives concurs in my views. Amono* 
other letters that I have had the honor to receive respecting 
the pamphlet I have lately issued on the subject, there is one 
from as pure a patriot and as firm a Southern man as any that 
breathes or has lived, who writes me in these words touching 
the point in agitation : 

"I agree with you very nearly, if not altogether, in respect 
to the most republican and constitutional mode of re-estab- 
lishing" our Union relations." 

Sooner after the end of the war, than any other person, 
when, of course, I did not have the light of any suggestions 
from any quarter, except the light shed on the subject by the 
Constitution of the United States, which was my sole guide, I 
ventured to develope that plan for reviving our Union rela- 
tions. It is founded, as the reader has seen, on the provision 
in that constitution, that the Congress of the States in the 
constitutional concert, may by law alter or make the regula- 
tions for electing th^ members thereto, from any State that 
has refused, as all in the rebellion did refuse, to renew their 
congressionol representation. Now, then, is the time for the 
Congress to act by a law to fix the times for making (^.l^pge 
elections. 
13 



92 

On an aspect of tlie subject just beginning to be developed, 
I will Here express my opinion. 

It was a wise precaution in tlie House of Eepresentatives 
to arm its clerk with authority to put on the roll of members, 
such only as have proper credentials. That does not make the 
clerk the judge to determine who is entitled to be the sitting 
members. It only charges him with the duty of judging who 
shall participate in organizing the House. In the New Jer- 
sey case, in which the contestants were not called in organ- 
izing the House, the clerk was sustained, altliough there was 
not, as there now is, a positive law to regulate his conduct. If 
that preliminary authority was not lodged somewhere, and 
no where can it be more under the control of the House, than 
in the clerk, men might get in, and, in organizing, defeat those 
entitled to be the sitting members. It is manifest that the 
present clerk takes the right view of the act of March 3, 1863, 
wherein he "regards it as requiring that the elections shall 
have been in accordance with the laws of the States respect- 
ively, and of the United States. If that were not so, then the 
ratio of representation might be disregarded to the extent of 
a State's sending up twenty, instead of any smaller number, 
to take part in organizing the House. The matter is too 
plain for debate. The House, by that act, was intending to 
protect itself. Certainly, however the disjunctive or has crept 
into that act, it is out of place. It would, if it were meant to 
be there, disjoin the House from the laws itself had concurred 
in making. Instead of protecting itself, it would, by using 
terms allowing the alternative of complying with any but its 
own laws, open a door for occasions of subordinating itself to 
the laws of a State. But let it be that the Congress intended 
the alternative that the laws of a State might govern and be 
obeyed in derogation of its own, and still the clerk is right, 
because there are as yet no laws in the States lately in rebel- 
lion, which authorize elections to the Congress, nor can be, 
until the Congress shall give vitality to their enactments. It 
is alone the Congress that can clothe these States with "change 
of raimant" — even with the festal robes of Federal service, in- 
stead of the cast-off garments of rebellious State "sovereignty." 



93 

I have not failed to see the eagerness of the people in the 
South to have civil law restored, and I unite in that earnest 
desire. Still I believe that the dignity of the State is sunk 
in making, and will yet, I fear, be lowered more by insisting 
on, elections without first being authorized by the Congress. 
Nor have I failed to see that under the ill-judged counsels of 
the newspaper press in the South, our people are likely to 
consider the rejection of the lately elected members to the 
Congress of the United States, as a great grievance to the 
South, and an act of Avhich the South will have just cause of . 
complaint against the North. My object has bpen, and will 
be, by all the means I can, to convince the people of the South, 
that the refusal by the Congress to admit these men to seats, 
is the constitutional duty of the Congress, and the highest 
measure of safety for the South. The firmest safeguard of 
the South is a strict observance of the constitution ; and any 
complaint in the South against the North for adhering to the 
constitution, ought to be prevented, if possible. It is better 
we should stay out of the Union, in the way of having no 
representatives in the Congress, for five years to come, than 
that the constitution shall be violated in admitting them. 
What is it, but that power, which constrains the President to 
declare that the right to regulate suffrage is a right the people 
of the several States comprising the Federal Union, have 
righteously exercised from the origin of the government to 
the present time ? It is alone that constitution which is so 
thoughtlessly said to be dead and buried, that is that constrain- 
ing power justifying the President. There is no other bar- 
rier encountering the flood of arbitrary power. Let that bar- 
rier be broken down, and where is the resort or the appeal of 
the people of the South ! And still, (how strange it is !) the 
people of the South are ready to say that the North is unjust, 
revengeful, and what not, if any plan the quickest, however 
* unconstitutional, to bring in the reign of civil law, shall be 
rejected by the North in Congress. For one, I will not join 
in that injustice. 



94 

The Writ of Habeas Corpus. 

Petersburg, Nov. 24th, 1865. 

In all the legislation in the federal or the " Confederate " 
Congress, none was more alarming to the friends of civil liberty, 
than were the laws sus{)ending the privilege of that writ. In 
the Senate of Virginia, where this writer was during most of 
the war, he devoted much of his labors to prevent the suspen- 
sions of the writ, in which, in concert with others, he had 
some success, and in preventing the trial of civilians by 
courts-martial, in which last it was his fortune, after a severe 
strugo-le, to have complete success. The writer had occasion 
• there to make speeches in which it was his object to define 
what is the privilege, and what is a constitutional suspension, 
of the writ ; and to argue that it ought not ever to be sus- 
pended. He will insert here an extract from that definition 
and argument. 

EXTRACT : 

I therefore renew the inquiry, what is that privilege f It 
is the right of the party in custody, to have the summary 
judgment of the law of the land, upon the alleged cause for 
the restraint of his personal liberty. The award of the writ 
to the petitioner, by the competent authority of the court or 
the judge, is to the efiect that the prisoner shall not absolute- 
ly be detained to await a trial in the regular course of law, 
but shall have an earlier opportunity to be confronted with 
the witnesses against him, in order to prove his innocence, or 
that there is at most against him onjy a light suspicion. The 
principle of the criminal law, that the accused, on, his trial, 
is presumed to be innocent, until his guilt is proved, is re- 
versed, and on this summary hearing which the award of the 
writ secures to him, he is presumed to be guilty, until he 
proves his innocence, or that there is only a light suspicion 
of guilt against him. In the one case, the accused will be re- 
leased ; in the other let to bail — and if he can establish neither 
his innocence, nor a light suspicion only, he will be" remanded 
to the custody from which he was taken by the award of the 
••writ. Such is precisely the privilege. A suspension of the 



96 

privilege, then, hath this extent, and no more, that the party 
held in custody, is compelled, in virtue of his arrest, to await 
in prison the regular trial appointed by the law. The sus- 
pension of the privilege does not deprive the prisoner, of the 
right to be regularly tried, but simply withholds the quicker 
hearing and decision of his case. But a practice prevails 
which makes void the constitutional assurance of a speedy 
trial by jury, and usurps a control beyond what the amplest 
lawful suspension of the privilege of the writ, can confer. 
This practice denies any trial at all, and keeps the party re- 
strained of his liberty, as if imprisonment w'ere not punish-: 
ment, but merely a pleasant pastime. JS"or are the rights of 
speedy trial by jury, the only constitutional rights that have 
usually been and are quite certain to be taken from the citi- 
zens, by legislative acts suspending the privilege of the writ. 
It is apt under the suspensions to be forgotten that men's per-, 
sons are not to be seized, except by virtue of the precept of 
the civil magistrate, issued upon probable cause and supported 
by oath. In the operations of the civil authority, it is often 
overlooked that the warrant is the constitutional precursor of 
seizures of the person. The practice is most injurious to the 
pride of a free man. If it be civil liberty where th^t practice 
is always apt and almost sure to ensue any suspension of the 
privilege of the writ, and it may, by authority given by the 
constitution, be suspended at the will of the men in office, 
then let me live where avowed despotism reigns.. 

Having shown thus what the privilege of the writ is, and 
what the extent of a lawful suspension is, I will proceed to 
show that it ought not ever to be surSpended. It is only some 
supposition of a necessity, in time of war in some form, either 
foreign or intestine, that can come to the mind to excuse the 
existence of a power, any where lodged, in a free system, to 
suspend the privilege of the writ. The founders of our system 
restricted the exercise of the power to the Congress, in 
cases of rebellion or invasion, and in such periods only when 
" the public safety requires it." What is the public safety ? 
As it has been in all times and .tongues, so it is yet. In the 
opinion of the tyrant, the public safety subsists in his own 



96 

safety — not alone in the security of his person, but (be the 
tyrant king or congress) in the security to himself of the des- 
potic power. The conception and contemplated impression 
on the mind of the ruling power aiming to be despotic, is the 
safety of the usurped power to augment that power. So un- 
safely for civil liberty, is the public safety guarded by the 
granted power to suspend the privilege of the writ. But 
suppose the power lodged where it will not be abused. Sup- 
pose further that the practice of denying or even unduly 
delaying the regular trial, be not suffered to prevail when the 
privilege of the writ is suspended. Why, even in such case, 
should the privilege of the writ be suspended ? The citizens 
or strangers under arrest and in custody, must be guilty or 
innocent. If guilty, all good men will agree, they ought to 
be tried and punished. If innocent, all men everywhere, but 
bad men, will agree, they should be set free or l?t to bail. 
Show, who can, why the privilege of the writ should ever be 
suspended. Show, who can, how the public safety can ever 
be served by it. Show, who can,- why, in any conceivable 
case, any one shall be denied an opportunity in advance of 
the regular trial, to prove his innocence. 






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THE EIGHT WAY 




I'OR 



|l(sl0riiig l|r.Iat£ |U.bcl^tatf-.s 



I C^lJ"! 



TO 



THE FEDERAL UNION; 



OR, 














AN AEGUMENT INTENDED TO INDUCE THE PEOPLE 

AND PUBLIC MEN, IN MAKINd ELCTIONS AND 

FILLING OFFICES, 

STA.TE -A.ND FEI3EK^L, 

TO BIC GOVERNED B A' 



THE CONSTITUTION OE THE UNITED STATES. 





'The subject who is truly loyal to the Cluff ihif^istrato. Mill neilher atlviNC >j 
nor submit to arbitrary iiioasun.s.'"— JuNir.s. 



m 



i*^ 



SE001:^ID E:i3ITI02Sr 



^By Eobekt R. CoLLiEii, Esq. 



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^ m 



HOLDING FORTH THE CONSTITUTION, 



AND INVITING CONCURRKNT LAWS. 



The writer of this pamphlet which his limited means deny 
him the privilege of enlarging, as he might Avith as much 
more matter already prepared for it, as is embraced in it, does 
not without inconvenience spare the amount required to pay 
for printing its present length. Yet, if he did not believe its 
value to any one who will buy and read it, will exceed the 
price it will be offered at, he would not offer it for sale, but 
give it away, as with his productions often before he has done. 
Its value is in the influence it is intended to exert in support [ 
of law and order. Surely, no patriot will consider of no 
value any efibrt that is sincere and conservative in support of 
our system of wLich Mr. Madison, in 1833, said: ''The 
happy union of t.ese States, is a wonder; their constitution 
a miracle; their example the hope of liberty throughout the 
world." 

This pamphlet proceeds on the supposition that the United 
States are intended to be governed by law, and that neither 
the States, noi* the people of the United States, have agreed 
to have, or require, a despot or dictator to rule them. 







V 



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II 



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LIBRARY OF CONGRESS 



013 744 553 



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